microsoft word preface.edited.edited.docx indonesian journal of law and society (2021) 2:1 v-viii issn 2722-4074 | https://doi.org/10.19184/ijls.v2i1.23616 published by the university of jember, indonesia available online 03 march 2021 editor’s introduction law in changing societies: spectra of the covid-19 and industrial economy issues the editorial board proudly presents the recent publication of the indonesian journal of law and society volume 2 issue 1 (march 2021). it is the third issue that the journal has consistently and rigorously selected manuscripts for publication from march 2020. in this issue, the critical topics examined by the authors mainly deal with the recent discourses on the law in changing societies, which includes its impacts from covid-19 to the way of the indonesian government that strived for leveraging more investments to end up an industrial economy. in this second year, the indonesian journal of law and society covers five scholarly papers. this issue spans from indonesia’s hegemony campaign in tobacco industries, nigeria’s reproductive rights in the wake of the covid19 pandemic, indonesia’s constitutional complaint against constitutional rights, indonesia’s ai-based legislative drafting, to state institutions’ dispute settlement from the newmont divestment case. the first paper entitled, "the dark side of tobacco industry's csr: a socio-legal analysis of the indonesian corporate hegemony campaign," was written by auditya firza saputra. this paper specifically investigated the conundrum of the tobacco industries, which are often seen to promote the national economy. however, narratives on economic contribution and industries’ philanthropic campaigns displayed industries as the protagonist sector. they played a significant role in creating a false public opinion on the tobacco industries' reputation. this paper considered that the tobacco corporations popularly utilized corporate social responsibility (csr) to attract public endorsement. simultaneously, industries opportunistically operated the campaign to portray virtuous narratives into its problematic existence. the situation has worsened during the covid-19 outbreak vi | law in changing societies: spectra of the covid-19 and industrial economy issues because excessive tobacco smoking behavior increased people’s health vulnerability. it deconstructed the existing dogma regarding industries' misperceived social reputation, which frequently justifies industries. under this issue, this journal also discussed reproductive rights in the wake of the covid-19 pandemic in nigeria. written by nnawulezi uche and bosede remilekun adeuti, their paper specifically highlighted the prospect of achieving sustainable reproductive rights protection in the wake of the covid-19 pandemic in nigeria. this paper examined existing nigeria’s laws on reproductive and health rights and ascertained the extent to which it had continually and predictably addressed the reproductive rights protection issue. it concluded that the adoption of a new approach to policies and programs on preventable maternal mortality and morbidity guaranteed the right to attain the highest standard of sexual reproductive health in nigeria. this issue also explored the future of the constitutional complaint adopted in indonesia to promote constitutional rights. this paper was written by standy wico, michael, patricia sunarto, and anastasia that revisited the range of a constitutional complaint following its legal certainty granted to the indonesian constitutional court. this paper considered no trial mechanism for claiming constitutional rights in indonesia under the constitutional complaint mechanism, even if the constitutional court has existed since 2003. the absence of this mechanism impacted the discourse to what extent to improving indonesian democracy. at the same time, it took into account that the state often ignores constitutional rights even if the promotion of these rights is essential in the rule of law. another paper, which exposed a considerably significant discourse in contemporary indonesia, discussed optimizing omnibus law. this paper was written by zaki priambudi, namira hilda papuani, and ramdhan prawira mulya iskandar that dealt with a legal inquiry on the use of artificial intelligence for legislative drafting. this method becomes a contentious issue in indonesia, responding to the government's ambition to pass the omnibus method on job creation law for stimulating more investments as part of excelling indonesia's industrial economy. hitherto, the omnibus law method has been regarded as a practical solution to harmonize and synchronize vii | indonesian journal of law and society statutory regulations. in practice, its application tended to be pragmatic and less democratic due to its limitation to public participation, exemplified from the legislative drafting of job creation law. amidst this reality, this paper analyzed the essential consideration and challenges of implementing the omnibus law model in indonesia with its further relevance of applying aibased legislation. the fifth paper discussed the dispute on state institutions' authority from the newmont divestment case in indonesia. this paper, authored by syahra ramadhani, maynanda shadrina, and sholahuddin al-fatih, analyzed the differences in implementing the existing laws governing an institutional power and function that encouraged disputes among state institutions. as a result of the similar authority granted to state institutions, inter alia, president, the house of representatives, and the financial audit agency, with regard to the newmont divestment case, this paper explored the importance of outlining further elaboration on the limits and meanings of state institutions. under the publication of this issue, the editorial board would also like to announce several updates about this journal. first, the editorial board is glad to inform that the indonesian journal of law and society has been indexed by garuda. it is a preliminary step before the journal has to submit the application of the national accreditation for being indexed in the science and technology (sinta) database, in addition to be widely indexed by other competitive index services for reaching a wider range of authors and readers. second, the editorial board also made several improvements in ensuring the quality and accessibility of the journal. it includes the more rigorous and selective peer-review of submissions, which proceeded with double-blind peer review since its inception. the journal also introduced the new template so that it can be easy to read for our readers. these changes and improvements are the initial steps in our ambition for the indonesian journal of law and society to be indexed internationally in the medium and reputable databases such as directory of open access journal (doaj), scopus, and the web of science. viii | law in changing societies: spectra of the covid-19 and industrial economy issues finally, on behalf of the editorial board, i would like to express my deepest gratitude to all authors who submitted their manuscripts to the indonesian journal of law and society. i also would like to extend my highest appreciation to all reviewers who have contributed to the quality of published papers in this journal. all parties that supported the journal, particularly the faculty of law, university of jember, are also very much appreciated. jember, 03 march 2021 muhammad bahrul ulum principal editor indonesian journal of law and society microsoft word 24627 edited.doc indonesian journal of law and society (2021) 2:2 259-264 issn 2722-4074 | https://doi.org/10.19184/ijls.v2i2.24627 published by the university of jember, indonesia available online 30 september 2021 _____________________________ * corresponding authors’ e-mail: yudiyw123@gmail.com book reviews philosophy of law: a very short introduction by raymond wacks yudi yasmin wijaya* university of jember, indonesia ananda aminulloh university of jember, indonesia copyright © 2021 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 09/06/2021 reviewed: 29/08/2021 revised: 29/09/2021 accepted: 30/09/2021 how to cite: wijaya, yudi yasmin & ananda aminullah, “philosophy of law: a very short introduction by raymond wacks” (2021) 2:2 indonesian journal of law and society 259-264, online: <https:// doi.org/10.19184/ijls.v2i2.24627>. this book reviewed by the authors has details outlined as follows: title : philosophy of law: a very short introduction author : raymond wacks language : english year : 2014 publisher : oxford university press 260 | philosophy of law: a very short introduction by raymond wacks the philosophy has been commonly introduced as the roots of knowledge that are also adopted in legal studies. legal philosophy is fundamental and notably the most abstract idea that constructs the legal way of thinking.1 this book entitled 'philosophy of law: a very short introduction' aims to put this critical topic of legal philosophy within a lively and simplified but subtle explanation. the paragraph within the book elucidates the basic ideas of law using the theory as espoused by many legal philosophers, especially from the european legal tradition. it suggests readers consider legal philosophy as the essential element regardless of the hefty characteristics and weighty philosophical legal literature. the main issue arises two main streams of legal intuitions, inter alia law as a tool or device designed for social changes and the doubt surrounding this idea in sociopolitical, moral, and economic interpretations. these concepts are explained in the light of natural law, legal positivism, interpretative law, rights and justice, society and law, and critical legal theory. raymond wacks presents law's situations and fundamental roles in a society constructed from the legal thoughts of conceptual and definitional problems interpreted as legal philosophy. as the introductive section, the introduction mainly covers how legal philosophy influences society through the coherent concept of living rules and legal doctrines,2 to guide readers to understand the importance of legal philosophy. the guidance indicates a focused analysis of the philosophical grounds of law through descriptive and normative legal theories, which does not have a clear-cut distinction. the first section of the book takes on the role of natural law in shaping legal philosophy grounds. the description goes into aristotle's thoughts about how nature invented the law through the natural process of morality. it deals with its interpretations using other theories coined by finnis, cicero, aquinas, groot, blackstones, hobbes, locke, rousseau, hume, and fuller. the interpretation from these legal scholars is mainly swirled 1 henry aspan & muhammad ali adnan, “several perspectives on the relationships between philosophy, philosophy of science, and law” (2021) 7:8 epra int j multidiscip res ijmr 363–367 at 365. 2 sanne taekama & wibren van der burg, “legal philosophy as an enrichment of doctrinal research part i: introducing three philosophical methods” (2020) 1:1 law method 1–19 at 4. 261 | indonesian journal of law and society around how the morality of human beings shaped the set of rules. this morality comes from the thoughts of churches believers such as aquinas, which interprets that god created these rules as sacred. in the second section of this book, legal positivism is interpreted as objectivity in law. morality in legal positivism is regarded as that changes not from nature yet from humanity. 3 legal positivism arises as to the reaction of natural law supremacy on the standard law system. furthermore, jeremy bentham and john austin's criticism leads to the revolution of law through the codification and interpretations of commands and legislative roles in shaping legislature for the utmost utility of society. also, hart's positivism raises the importance of linguistic application for philosophical studies. this linguistic study leads to the development of the usage of legal terminology as the concept of law. on the other hand, the officials have to accept the legal change and practice adjudication. this thought was provided by hart and followed by hans kelsen towards the invention of legal norms as the basics elements of jurisprudence and legal transaction. these norms may intertwine and legalize the rule of law from general to more specific norms. the concepts of general norms are indicated as the primary source of the grundnorm theory of kelsen. legal positivism goes further to joseph razh's law as a social fact, which subdues morality as less important than the fact itself. the description through legal positivism in this book used the same former structure. using similar methods repeatedly, wacks forces readers to read each sub-section of every legal scholar's thoughts to find each topic's philosophical grounds. stepping on the third section of law as interpretations, the sole focus of this section will be on how the role of judges affects the non-codification situations through the adjudication process.4 unlike the other section, wacks explains that this third section may only use the ronald dworkin 3 david plunkett, “robust normativity, morality, and legal positivism” in david plunkett, scott j shapiro & kevin toh, eds, dimens norm new essays metaethics jurisprud, 1st ed (oxford, 2019) 105 at 109-110. 4 helmich maurits, “restraint as a source of judicial’apoliticality’: a functional reconstruction” (2020) 49:1 netherl j leg philos 179–195 at 182. 262 | philosophy of law: a very short introduction by raymond wacks accounts. dworkin explains judges' role in law that should be considered the subject interpreting the law through the elements considered law which solely rejects legal positivism. this thought explains the rejection by explaining that the codification of legal rules is not the only object considered as law but also the other elements such as morality and political influence. the interpretative nature is regarded as the first to defend individual rights and liberty through judges' roles in the adjudication process. the defense of rights and liberty leads to the importance of the principles and wisdom of the judges and promotes liberalism in law. the third section includes the explanation of rights and justice started when individuals seemed to assert too much on their rights and imposed government to safeguard them. this legal situation leads to the interpretation of rights as the waiver of certain individual duties limited by the law without changing their substance.5 furthermore, the explanations are provided by the negativity theory of hohfield. they are the idea of basic human rights interpreted by the holocaust and apartheid politics, how the concept of justice leads into the revolutions of rights influenced by utilitarianism and economic analysis from richard posner's, and the fairness introduced by john rawls in his theory of legal consensus. the fourth section of this book changes the style to focus on interpretative behaviors. the following section about law and society will further analyze how the social conditions are acknowledged by their considerable influence in legal philosophy thoughts. the explanation starts from how durkheim explains law from creating punishments as forms of social solidarity, followed by weber's interpretations of rationality as the key element of this sociology of law approach. these two scholarly explanations lead to the concept of capitalism countered by marx with his socialist economic theory that explains the law as merely tools for capitalists to rule beyond others. instead of relying on the conflict of these theories, habermas explains the law as an institution focused on communicative action to create normative integrations. on the other hand, michael foucault describes the law as the 5 grégoire webber, past, present, and justice in the exercise of judicial responsibility (kingston, 2017) at 12. 263 | indonesian journal of law and society practice of powers that seeks domination using disciplinary techniques to protect capitalism. to wrap up the former explanations, wacks uses critical legal theory as the book's last section. critical legal theory is intended to contest the rationality of law that maintains legal systems with the possibility of fraudulent legitimacy.6 by contesting the rationality of law, critical legal theory using several approaches such as critical legal studies, post-modern legal theory, and feminist legal theory. these approaches argue that the lack of legal components will reduce its purpose into mere political debates. the contradiction of legal doctrines in the form of arguments cannot rely upon. the marginal purpose of law should be controlled by the exterior components outside of the law. all form of these characteristics leads to post-modernism and feminist view towards legal theories. post-modernism seeks to understand beyond laws by considering individuals' personal experiences, and feminism looks into the rationality of law based on gender equality of men and women through human rights analysis. finally, this book provides illustrations of several scholars and legal activities that may increase the readers' interest. the writings have also offered a low ratio of typological errors. the index of the books may also help the readers search effectively. however, the monotone structure may tire the reader to enjoy this literature supplemented by the absence of a quick summary of the topics. the other bane is also located within the review structure, which could be more systematic, and the references, which majorly from obsolete literature. the entirety of the literature has also fulfilled its role in giving the reader simple yet effective explanations of philosophical topics of law and should also be helpful for the general readers outside of legal scholars. moreover, this concise introduction book is recommended to buy only £8.99 for a starter book for anyone interested in legal philosophy, especially those interested in european or britishamerican legal philosophy. 6 mark tebbit, philosophy of law: an introduction (abingdon: routledge, 2017) at 107-108. 264 | philosophy of law: a very short introduction by raymond wacks references aspan, henry & muhammad ali adnan, “several perspectives on the relationships between philosophy, philosophy of science, and law” (2021) 7:8 epra int j multidiscip res ijmr 363–367. maurits, helmich, “restraint as a source of judicial’apoliticality’: a functional reconstruction” (2020) 49:1 netherl j leg philos 179– 195. plunkett, david, “robust normativity, morality, and legal positivism” in david plunkett, scott j shapiro & kevin toh, eds, dimens norm new essays metaethics jurisprud, 1st ed (oxford, 2019) 105. tebbit, mark, philosophy of law: an introduction (abingdon: routledge, 2017). taekama, sanne & wibren van der burg, “legal philosophy as an enrichment of doctrinal research part i: introducing three philosophical methods” (2020) 1:1 law method 1–19. webber, grégoire, past, present, and justice in the exercise of judicial responsibility, by grégoire webber (kingston, 2017). microsoft word 28220 production.doc indonesian journal of law and society (2022) 3:1 157-166 issn 2722-4074 | https://doi.org/10.19184/ijls.v3i1.28220 published by the university of jember, indonesia available online 29 april 2022 _____________________________ * corresponding authors’ e-mail: alvi.pratama@unpas.ac.id book reviews a theory of legal personhood by visa a.j. kurki mohammad alvi pratama* pasundan university, indonesia eva laila rizkiyah gadjah mada university, indonesia copyright © 2022 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 09/12/2021 reviewed: 26/01/2022 revised: 22/03/2022 accepted: 29/04/2022 how to cite: pratama, mohammad alvi & eva laila rizkiyah, “a theory of legal personhood by visa a.j. kurki” (2022) 3:1 indonesian journal of law and society 157-166, online: <https://doi.org/ 10.19184/ijls.v3i1.28220>. this book reviewed by the authors has details outlined as follows: title : a theory of legal personhood author : visa a.j. kurki language : english pages : (xvi + 224 pages) year : 2019 publisher : oxford university press isbn : 978-0-19-884403-7 title : a theory of legal personhood author : visa a.j. kurki language : english pages : (xvi + 224 pages) year : 2019 publisher : oxford university press isbn : 978-0-19-884403-7 158 | a theory of legal personhood by visa a.j. kurki the notion of legal personhood has garnered more attention, particularly for non-humans.1 several lawsuits dealt with animal rights activism for legal personhood for chimps and other species of orangutans. tommy, a chimpanzee, was one of some cases advocated by the non-human rights project.2 other topics contributing to the expansion are the extension of legal personhood to natural objects such as rivers or space3 and non-natural objects such as robots and artificial intelligence.4 with the rapid development of biotechnology,5 the definition of legal personhood begins with the fetus.6 these issues of questioning the concept of legal personhood are also addressed in the legal priorities project's legal priorities research.7 this book entitled, 'a theory of legal personhood' seeks to deconstruct the conventional view of legal personhood. the author refers to the orthodox view that legal personhood is something with legal rights and obligations, followed by introducing a new concept the author dubs the bundle theory. it draws readers' attention to the forthcoming title since 1 anna arstein-kerslake et al, “relational personhood: a conception of legal personhood with insights from disability rights and environmental law” (2021) 30:3 griffith law review 530–555. 2 non-human rights projects, “the nhrp’s first client: tommy (chimpanzee)”, (2018), online: nonhum rights proj <https://www.nonhumanrights.org/clienttommy/>; kristin andrews, et al., chimpanzee rights: the philosophers’ brief (routledge, 2018). 3 daniel p corrigan & markku oksanen, “rights of nature: exploring the territory” in rights nat re-exam (new york: routledge, 2021); kaloyan kirilov, a human right-based approach to protecting the environment: status, critique and alternatives university of helsinki, 2019). 4 s k stepanov, “deconstruction of the legal personhood of artificial intelligence” (2021) 2:2 digit law j 14–30; ben chester cheong, “granting legal personhood to artificial intelligence systems and traditional veil-piercing concepts to impose liability” (2021) 1:9 sn soc sci 1–20. 5 muhammad bahrul ulum, “regulating biosafety of genetically modified crops in indonesia: limits and challenges” (2021) 12:1 uum journal of legal studies 157– 177 at 159. 6 b s van loggerenberg, the legal nature of a cryopreserved human embryo : a legal comparative analysis north-west university, 2021); visa aj kurki, “active but not independent: the legal personhood of children” (2021) 30:3 griffith law review 395–412. 7 christoph winter, et al., legal priorities research: a research agenda (2021). 159 | indonesian journal of law and society deconstruction and construction initiatives give new perspectives on legal persons. it also examines the link between humans and non-humans and the definition of their rights and responsibilities. this book presents a broad overview of the fundamental concept of rights and duties, focusing on rights and the difficulties associated with applying them to non-human beings. additionally, people have been confronted with rapid technological advancements that bring new knowledge about life, humans, and non-humans, such as robots and artificial intelligence, as well as biotechnology subjects.8 furthermore, this work calls into doubt the integrity of the accepted legal definition of persons,9 and it has concerns about the right and a legal entity. we consider that, in this book, the author's primary aim was to comprehend why legal scholars describe a legal entity as a subject with legal rights and duties. following this, there is a link between a legal person and the capacity to have a legal position within this ambiguity. however, there is a discrepancy with the author's assessment of the current contemporary reality. only individuals have the potential to have rights.10 as a result, a chimpanzee, as mentioned before, cannot have rights based on its status as a legal person. its rationale emerges that historically, the worth of rights has been linked to the formulation of social responsibilities, implying that rights and obligations should be reciprocal. according to the new york state court, by citing the non-human rights project's argument,11 animals should not enjoy legal rights comparable to humans because they cannot fulfill all societal obligations. subsequently, it is anchored in legal issues confined to people, albeit there have been recent extensions to specific physical things, such as fetuses as legal persons in certain circumstances.12 it becomes one of the author's fundamental concepts in the bundle theory of legal personhood. 8 ibid. 9 tomasz pietrzykowski, personhood beyond humanism: animals, chimeras, autonomous agents and the law (springer, 2018); tomasz gizbert-studnicki, “the most important problems of legal philosophy and the nature of law.” 10 pietrzykowski, supra note 9. 11 non-human rights projects, supra note 2. 12 kurki, supra note 6. 160 | a theory of legal personhood by visa a.j. kurki the capability for legal personhood does not have to be a whole human being. the new concept refers to the distinction that legal personhood is divided into active and passive. then, newborns only have passive incidents. however, adults have both active and passive occurrences. this comparison is to classify infants as passive legal persons and non-human entities that are not in the same position. however, they do not have the same rights. meanwhile, the next category, adults or individuals, are active incidents with rights and abilities like criminal culpability and the capacity to contract. it is because contemporary rights theories deny the legal personhood of things that are not entirely human, such as fetuses, nonhumans, or even human children. thus, for the author to reconcile the idea of legal personhood with the integrity of this definition, he must engage the rawlsian approach, namely reflective equilibrium13, to rearrange this 'belief.' overall, the three main sections of this book deliver some critical notes dealing with the new concept to new understanding. part 1 critically examines the author's 'orthodox view' of human rights. in part 2, the author introduces a new concept, dubbed 'the bundle theory.' it is a result of reconstructing the integrity of the notion of legal personality in connection to the capacity to have rights. part 3, which contains three subchapters, is an attempt by the author to 'applying the theory' by discussing collectivities as legal persons, i.e., corporations, legal personhood in artificial intelligence, and the normative debate surrounding legal personhood. the first part of this book contains a historical-critical examination of the shift or evolution of the 'orthodox views' whole concept of legal persons. the author brings us back to ancient rome in the sub-chapter 'a short history of the right-holding individuals,' where roman jurist gaius divides rules relating to persons (personae), objects (res), and acts (actiones). the term persona becomes challenging if it only refers to human functions 13 john rawls, a theory of justice (cambridge, mass: harvard university press, 1971). 161 | indonesian journal of law and society or characteristics. as cicero coined,14 humans have four distinct personas: reason, personal qualities, position, and occupation. following boethius,15 the personae are 'the unique substance of rational nature.' this concept plays a significant role in establishing that legal personhood is unique to humans. the author then continued that the technical definition was carried over to the renaissance and aufklarung era, or the age of enlightenment when legal scientists agreed. then, it significantly impacted western legal culture. however, the orthodox conception of the relationship between the elements of person and rights was disrupted after the 19th century. thus, in the sub-chapter 'rights and persons' of the hohfeldian analysis, the author demonstrates how the definition of legal personhood has stagnated, resulting in the concept's insufficiency. this section begins with a discussion of the holfeldian doctrine, which holds that only human beings are legal people and holders of legal positions. the author examines the formulations of the orthodox view. first, rights or duties are attached to a legal person as an entity that possesses at least one right or bears at least one duty. second, rights and duties that an entity must possess at least one right or bear at least one duty in order to qualify as a legal person. third, capacity for rights, as steven wise asserts that legal personhood is defined as capacity. fifth, according to hans kelsen, a bundle of rights or obligations is a collection of rights or obligations. in doing this, the author examines the application of each conception of rights' orthodox positions in this sub-chapter, except for hans kelsen's concept based on three contemporary conceptions of rights, namely the interest theory, the will theory, and the vague anything beneficial conception. in short, this idea is insufficient to describe what legal people are and who are legal persons based on interest theory. it is because it is widely thought that things such as fetuses, non-human animals, and enslaved people possess interest-theory rights. these entities are frequently categorized as 14 christopher gill, “personhood and personality: the four-personae theory in cicero, de officiis i” (1988) 6 oxford studies in ancient philosophy. 15 udo thiel, the early modern subject: self-consciousness and personal identity from descartes to hume (oxford university press, 2011). 162 | a theory of legal personhood by visa a.j. kurki legal nonpersons.16 the same is true of the 'anything-beneficial' notion because if animals and fetuses have interest-theory rights, they certainly have beneficial rights. however, under the will theory, newborns, animals, and those with mental disorders are not considered to have rights. the second part introduces a new notion connected to the concept of rights, describing 'the bundle theory,' according to which the definition of legal personhood's integrity is determined by its relationship to the event category. in the sub-chapter, ' the incidents of legal personhood,' the author distinguishes between two types of episodes, namely passive and active incidents of legal personhood. fundamental safeguards are the essence of passive occurrences; habeas corpus is fundamental protection, as is the physical integrity of its bearers; and fundamental protections also have a high hierarchical standing, particularly protection against consequentialist policy concerns.17 there is the capacity to be a party to special rights. it is the special transaction between individuals or arising from some special relationship in which they stand to one another. the persons with rights and corresponding obligations are limited to the parties to the particular transactions or relationships. another component of the capacity to possess rights is the ability to own property, which includes a discussion of invulnerability to ownership. meanwhile, two episodes are ongoing, namely the power to commit legal acts (legal competencies) and legal responsibility (onerous legal personhood). contemporary western legal systems do not let toddlers or persons with severe mental disabilities engage in contracts or punish such creatures or humans for their wrongdoings under criminal law provisions. there is an emphasis that there is no clear-cut distinction between an active and passive legal person. the author uses this uncertainty to spark new ideas by contrasting conventional viewpoints with bundle theory, which addresses the problem in a gray area circumstances. for instance, the bundle theory acknowledges that enslaved people were endowed with 16 pietrzykowski, supra note 9. 17 ronald dworkin, taking rights seriously harvard university press (harvard university press, 1977). 163 | indonesian journal of law and society certain aspects of legal personality but not others and that women's route to 'complete' legal personhood evolved gradually through time. in the sub-chapter 'who or what can be a legal person?' the author will define legal personhood and distinguish between a legal person and a legal platform. we find it interesting that the author believes the word "legal person" is confusing in two senses: a collection of legal positions and an entity that possesses them. the author stated that legal people in legal platforms are preferable as a collection of legal positions. each legal person corresponds to at least one default legal platform and bears the associated rights and obligations. while natural legal platforms accompany natural individuals from conception to death, alternative legal platforms are infinitely definable. the idea is that while newborns are legal people, they do not require authority over a legal platform since administrators may represent them. businesses can be founded and associated with natural legal persons. what becomes critical is the connection of a platform, which entails the legal attribution of status to persons. while it is evident that the legal platform may be applied to things such as human beings, it can also be attached to non-human entities such as animals or even inanimate objects. it demonstrates that passive personhood possesses the same rights as active persons. in a theory of bundles, the author attempts to extend this concept to hypothetical legal persons such as artificial intelligence and even to animals, particularly in part 3. additionally, this book concludes with open dialogues that focus on normative issues. it is a breath of fresh air for all beings in the cosmos, both passive and active. finally, this critical work is essential to examine, particularly in light of technical breakthroughs focusing on partially human beings in robot technology with artificial intelligence and embryos in biotechnology. additionally, this book has a low typographical mistake rate. also, the index aids readers in conducting productive searches. in sum, a highly interdisciplinary examination of the legal person, legal personhood, and rights theory provide a platform for reconsidering what legal subjects are. we recommend the readers acquire this book as a basic 164 | a theory of legal personhood by visa a.j. kurki understanding for today's jurists and, more broadly, for anybody interested in reconsidering the status of things in our world. references andrews, kristin, et al., chimpanzee rights: the philosophers’ brief (routledge, 2018). dworkin, ronald, taking rights seriously harvard university press (harvard university press, 1977). kirilov, kaloyan, a human right-based approach to protecting the environment: status, critique and alternatives university of helsinki, 2019). loggerenberg, b s van, the legal nature of a cryopreserved human embryo : a legal comparative analysis north-west university, 2021). pietrzykowski, tomasz, personhood beyond humanism: animals, chimeras, autonomous agents and the law (springer, 2018). thiel, udo, the early modern subject: self-consciousness and personal identity from descartes to hume (oxford university press, 2011). arstein-kerslake, anna et al, “relational personhood: a conception of legal personhood with insights from disability rights and environmental law” (2021) 30:3 griffith law review 530–555. cheong, ben chester, “granting legal personhood to artificial intelligence systems and traditional veil-piercing concepts to impose liability” (2021) 1:9 sn soc sci 1–20. corrigan, daniel p & markku oksanen, “rights of nature: exploring the territory” in rights nat re-exam (new york: routledge, 2021). gill, christopher, “personhood and personality: the four-personae theory in cicero, de officiis i” (1988) 6 oxford studies in ancient philosophy. gizbert-studnicki, tomasz, “the most important problems of legal philosophy and the nature of law”. 165 | indonesian journal of law and society kurki, visa aj, “active but not independent: the legal personhood of children” (2021) 30:3 griffith law review 395–412. stepanov, s k, “deconstruction of the legal personhood of artificial intelligence” (2021) 2:2 digital law journal 14–30. ulum, muhammad bahrul, “regulating biosafety of genetically modified crops in indonesia: limits and challenges” (2021) 12:1 uum journal of legal studies 157–177. projects, nonhuman rights, “the nhrp’s first client: tommy (chimpanzee)”, (2018), online: nonhum rights proj <https://www. nonhumanrights.org/client-tommy/>. rawls, john, a theory of justice (cambridge, mass: harvard university press, 1971). winter, christoph, et al., legal priorities research: a research agenda (2021). 166 | a theory of legal personhood by visa a.j. kurki this page intentionally left blank microsoft word 16757-published.docx indonesian journal of law and society (2020) 1:1 23-36 issn 2722-4074 | doi: 10.19184/ijls.v1i1.16757 published by university of jember, indonesia available online 31 march 2020 * corresponding authors’ e-mail: yesinsari6@gmail.com land acquisition for public interests: a review from the human rights context yesi nurmantiyas sari university of jember, indonesia rizal nugroho university of jember, indonesia al khanif university of jember, indonesia abstract. land acquisition for public purposes is an activity intended for the public interest that uses community land. to be able to carry out development in the public interest, the government uses state land. if state land is not sufficient or cannot maximize development, the government can use land from individuals or groups by carrying out the land acquisition. in implementing land acquisition, the land acquisition team must pay attention to the rights of the people affected by land acquisition. irregularities that often occur in the implementation of land acquisition are related to discrimination, intimidation, and violence. these rights are included in human rights, which must be upheld and protected because this is closely related to property rights. human rights give an understanding that the right to own something is the right of every citizen, including the right to own land is one of the human rights inherent in each person per person in groups. while property rights must not be taken arbitrarily and against the law, such matters are regulated in article 28h of the 1945 constitution. this paper concludes that the construction activities of the new yogyakarta international airport (nyia) carried out violated human rights; this is because the land acquisition team has committed violence, discrimination, and violence against the people affected by land acquisition. the form of legal protection provided by the government is proper compensation. keywords: land procurement, human rights, property rights. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions submitted: 12/02/2020 reviewed: 14/02/2020 accepted: 10/03/2020 24 | land acquisition for public interests: a review from the human rights context i. introduction the land is a significant component to carry out development. the intended development is development in the public interest. land acquisition is a development activity intended for the public interest whose land takes land from the community by carrying out the land acquisition.1 therefore it can be said that land has a dual function, namely as social assets and capital assets as social assets land is a means of binding social unity among indonesian people to live and live, while capital assets land is a factor of capital and development.2 to be able to carry out development in the public interest, the government uses state land. if state land is not sufficient or cannot maximize development, the government can use land from individuals/ individuals or groups by carrying out the land acquisition. in order to determine the size and form of compensation in land acquisition, the land acquisition team conducts a consultation with the community whose land is affected by land acquisition. in determining the form and amount of compensation, there is often no agreement between the parties concerned, which causes the land acquisition process to become protracted or neglected. in principle, without a process of deliberation between the holders of land rights and the parties/government agencies that need land, land acquisition for the implementation of development in the public interest will not occur.3 as a result, a development which has been predicted to be in the public interest of the entire indonesian community has not been realized. in the process of land acquisition, when the determination of compensation or deliberation experiences a deadlock, the government has the right to revoke rights. to be able to revoke the rights of the government must pay attention to article 18 of law number 5 of 1960 on the basic regulations 1 article 1 number 2 of law number 2 of 2012 on land procurement for development in the public interest is the activity of providing land with the appropriate and fair compensation to the rightful parties. 2 bernhard limbong, land acquisition for development: regulation, compensation, law enforcement (margaretha pustaka, 2011) at 133. 3 ibid at 188. 25 | indonesian journal of law and society on agrarian principles.4 from article 18, it can be concluded that the revocation of rights can only be done in the public interest and pay attention to the interests of the holder of the rights to the land to be revoked and in the revocation of these rights a proper compensation must be given. since all land rights have a social function, the public interest must take precedence, while individual interests as long as they do not preclude the public interest are still recognized as legal and absolute rights to third parties.5 the implementation of land acquisition in the public interest must pay attention to the rights of the holder of land rights. given that land is an inseparable part of their lives. the intended rights are ownership rights over land. property rights are fundamental rights for humans. in the 1945 constitution article 28h paragraph (4), it has been explained that every person has the right to own property rights without being taken arbitrarily.6 for this reason, every citizen's right to own something is the right to own land, as no one can contest a human right inherent in every individual and group.7 the definition of human rights based on general provisions article 1 number 1 of law number 39/1999 on human rights is a set of rights inherent in the nature and existence of human as being god’s creature and gift that must be respected, upheld and protected by the rule of law, the government, and everyone for the sake of honor and protection of human dignity. from this understanding, the state with human beings must respect 4 article 18 of law number 5 of 1960 on the basic regulations on agrarian principles. it is said that "in the interests of, including the interests of the nation and state and the common interests of the people, land rights can be revoked, by providing appropriate compensation and in a manner regulated by law" "law number 5 of 1960", online: <http://www.bpn.go.id/publikasi/ regulations-legations/undangundang/undang-undang-nomor-5-tahun-1960-920>. 5 limbong, supra note 2 at 212. 6 the 1945 constitution article 28h paragraph (4) states, "every person has the right to have private property rights and such property rights may not be taken arbitrarily by anyone." asa computell, "state law of the republic of indonesia" 12. 7 nurus zaman, politics of land procurement law between public interest and protection of human rights (bandung: refika aditama, 2016) at 183. 26 | land acquisition for public interests: a review from the human rights context each other and uphold human rights related to the honor of every human being. besides, it is not only humans as persons whose rights must be protected, respected, but the state as a representative of its people also has their right to determine where the country will be taken.8 therefore in the implementation of land acquisition, the government must not ignore the value of existing human rights even in the public interest. neglected human rights values can occur when the land acquisition team ignores the elements of land acquisition. one element that is neglected by the land acquisition team following the statement above is the release of land rights in the public interest. the example of the implementation of land acquisition that ignores human rights is the construction of the new yogyakarta international airport (nyia) mega project. the mega project is reaping various pros and cons that cause a very long conflict. it emerged because the people affected by the land acquisition did not agree on the development plan, and the land acquisition team committed acts that could be said to violate human rights. human rights violations in question are physical violence, discrimination, and intimidation, which can be detrimental to communities affected by land acquisition. concerning the case examples above, there is often no synergy between the public interest and the interests of the community. the conflict between the public interest and the interests of the community arose, which triggered human rights violations. in this case, the first problem is the compatibility between the implementation of land acquisition and human rights in the case of the construction of the new yogyakarta international airport (nyia). the implementation of land acquisition of human rights has always been a prolonged conflict. it happened because the people affected by land acquisition feel that their rights have been ignored. also, the implementation of land acquisition in this mega project is characterized by acts of violence, intimidation, and discrimination committed by the land acquisition team so that this results in disharmony between the relationship between land 8 ibid at 177. 27 | indonesian journal of law and society acquisition and human rights. then the second problem that arises is legal protection for people affected by land acquisition. this legal protection can protect the rights of the community itself. it also can provide certainty, usefulness, and justice for the people affected by land acquisition. ii. suitability of land procurement for general interests with human rights land acquisition, in its implementation, is always associated with problems that arise. according to maria sw sumardjono, the three main issues in question are the limitation or definition of public interest, the mechanism for valuing land prices and compensation, and the procedures for land acquisition that must be adopted.9 three principles must be applied in carrying out activity acquisition land in the public interest, namely, the10 the government owns the first activity, in which it contains a limitation that individuals or the private sector cannot own public interest activities; in other words, private and individuals cannot have the types of public interest activities that require the acquisition of land rights and the state. second, related development activities carried out by the government means that this sentence provides a limitation that the government can only play the process of implementing and managing activity for the public interest. because the purpose of the sentence is unclear, the question arises: what if the implementation and management of activities in the public interest are tendered to the private sector. because in practice, many activities are in the public interest, but the manager of the activity is the private sector. third, not looking for profit means that this sentence limits the function of activity in the public interest so that it is entirely 9 ibid at 130. 10 adrian sutedi, implementation of public interest principles in land procurement for development (jakarta: sinar grafika, 2008) at 75. 28 | land acquisition for public interests: a review from the human rights context different from the private interest, which aims to make a profit so that it is qualified that the public interest is not allowed for profit at all. land acquisition is interrelated with spatial planning. this is because objects in the land acquisition are included in space. this statement has been stated in article 1 general provisions number 1 of law number 26/2007 on spatial planning.11 in organizing spatial planning must pay attention to nine principles regarding the principles of spatial planning. this relates to the rights and obligations of spatial planning. thus, the rights and obligations of spatial planning are stated as follows,12 each person has the right to enjoy the benefits of space, including the added value of space as a result of spatial planning, everyone has the right to know the spatial plan, participate in spatial planning and spatial control, and get a replacement that is feasible for the conditions experienced as a result of the implementation of development activities under the spatial plan. in the third point, the implementation of land acquisition for development in the public interest is closely related to spatial planning. land acquisition activities for development for public use must be carried out based on spatial and regional planning13. it is intended that the land acquisition team uses land following its designation. when the use of land in land acquisition is not by the spatial and territorial plans, the land cannot be expanded and developed, meaning that it is a form of activity intended for public interest or the interests of the community not under its designation. the procedure for land acquisition is taken. the implementation of land acquisition for development in the public interest does not always go according to plan. in practice, some agree or hold rights over land or those 11 article 1 general provisions number 1 law number 26/2007 on spatial planning is a container that includes land space, sea space, and air space, including space in the earth as a single territory, where humans and other creatures, carry out activities and maintain its survival "law number 26/2007", online: ministry of agriculture and spatial planning for land affairs nas < number-26-year-2007-1849>. 12 supriadi, agrarian law, sixth edition ed (jakarta: sinar grafika, 2015) at 286. 13 urip santoso, agrarian law, first edition ed (jakarta: kencana prenada media group, 2012) at 297. 29 | indonesian journal of law and society who disagree concerning development regarding their land. owners/holders of land rights who agree will be given compensation under a mutual agreement in a discussion between the land acquisition team and the holders of land rights, whereas those who disagree will experience a complicated conflict with the party implementing the land acquisition. the conflict arises when the holders of land rights do not agree to surrender their land to the party implementing the land acquisition because, according to them, the compensation given is not feasible, the land occupied is the inheritance of their ancestors and so on. conflicts often occur so far as coercion from two parties, namely the government, to set prices unilaterally while landowners demand prices that are considered unnatural and too high. meanwhile, the existing legal instruments have not been able to accommodate these two different interests so that what is used are ways of coercion and intimidation that cause violence in the community in every process of land acquisition for development in the public interest.14 kulon progo realized the airport development plan by making a regulation in the form of a regional regulation (perda). kulon progo regency regulation number 1 of 2012 on spatial planning for the kulon progo regency year 2012 2013. in the regional regulation, precisely in article 18 states that "the air transportation network as referred to in article 11 letter c is in the form of an airport with plans to construct a new airport in temon subdistrict, wates subdistrict. panjatan district, and galur district ". of the four regions that have been listed in regional regulation no. 1 of 2012 on the regional spatial planning of kulon progo regency in 2012-2013, temon district is considered the most strategic for being an airport. the decision reaped the pros and cons, and this is where the complicated conflict began. based on number 3 announcement of the secretary of the special region of yogyakarta number 593/3145 on designation of development locations for the development of new airports in yogyakarta special region palihan village, kebonrejo village, and glagah village, temon district, kulon progo regency. the land area needed for development for 14 achmad rubaie, hukum pengadaan tanah untuk kepentingan umum (pusderankum dan bayumedia publishing, 2007) at 12. 30 | land acquisition for public interests: a review from the human rights context the development of the new airport in the special region of yogyakarta is ± 645,63 ha". construction of new yogyakarta airport international airport was built to replace adisutjipto airport, which is currently overcapacity. in this case, the party involved in the conflict over the megaproject development of the new yogyakarta international airport (nyia) is the local government, pt. angkasa pura i, and the local community. this conflict caused the community to split into two, namely the people who supported the construction of the new nyia airport and those who refused to build the new nyia airport. the people who support the mega project are those who have held consultations with the land acquisition committee and agreed on the decisions reached. besides, they have also participated in socialization, receipt of compensation, and relocation. those who refuse the construction of the airport are members of the wahana tri tunggal (wtt). wahana tri tunggal (wtt) is an organization formed to fight for the interests of the community and defend their land rights from pt. angkasa pura i and the local government. in fighting for the interests of the temon district community, wahana tri tunggal (wtt) received support from the yogyakarta legal aid institute (lbh). pt takes action. angkasa pura i related to land clearing is a violation that violates the rights of the community itself. in addition to violence, local people often accept intimidation, especially those who refuse to deal with the construction of a new airport, the new yogyakarta international airport (nyia). even a resident named fajar afandi, a resident affected by the construction of the airport in new yogyakarta international airport (nyia), received inappropriate treatment by the authorities in charge of securing the land clearing execution, he claimed to be strangled from behind, dragged and then kicked in the calf by the authorities while in the form of defending the ground and his house from a backhoe hit (heavy equipment to do the excavation) as a result he suffered injuries to the neck, calves, and some points 31 | indonesian journal of law and society on his body.15 in this case, the process of implementing land for development in the public interest does not follow existing regulations because the implementation process uses actions that are detrimental to the people affected by land acquisition. human rights are very basic rights that are owned by every human being and as one of the symbols that distinguishes humans from other creatures. the definition of human rights itself is contained in article 1 general provisions number 1 of law number 39 of 1999 on human rights.16 based on the understanding of human rights, the state and human beings with one another respect each other and understand each other that human rights are related to the honor and existence of human identity in carrying out their lives.17 in relation to land acquisition activities, human rights must be respected, protected, and protected. it is intended that the people affected by land acquisition do not feel disadvantaged in physical or financial form after development. the procedure for the implementation of land acquisition for development in the public interest is generally carried out based on the procedures set out in the legislation. this is done so that people affected by land acquisition get justice based on human rights. human rights in carrying out land acquisition activities must always be considered to minimize conflicts between the party implementing acquisition land and the people affected by land acquisition. in its implementation, land acquisition activities must not be carried out arbitrarily, which can trigger human rights violations. human rights violations in question are violations committed by the party implementing land acquisition against people affected by land acquisition through physical violence, coercion, and intimidation relating to the release of land rights. in 15 tribunnews jogja, “pengakuan seorang warga terdampak bandara nyia: saya dicekik, dipukul dan diseret," online: <http://jogja.tribunnews.com/2017/12/05/ pengakuan-seorang-warga-terdampak-bandara-nyia-saya-dicekik-dipukul-dandiseret>. 16 computell, supra note 6. 17 zaman, supra note 7 at 177. 32 | land acquisition for public interests: a review from the human rights context this case, human rights violations that are ignored or violated by the party implementing land acquisition are related to property rights. iii. legal protection for communities affected by land procurement it is only natural that a regulation regulating the legal protection of owners or holders of land rights that have certainty, usefulness and legal justice by fulfilling the various desires and needs of owners/holders of land rights without intimidation, deception, and discrimination because all citizens are equal before the law and are entitled to obtain legal protection from acts of intimidation, deception, and discrimination. the explanation above related to the legal protection of ownership of land rights explains that the tenure rights to land owned by individuals and customary rights are fundamental rights that must be protected. land acquisition or land acquisition of individual property rights or customary rights by anyone, including the authorities, namely the government, must not be taken arbitrarily and violate the human rights of every individual, including reasons for development in the public interest. if this is conducted, then it must be based on law and be given adequate compensation. the interest of each person in question is the right that is entitled to each individual about the acquisition of land for development in the public interest. the inherent characteristic of the right according to the law, as stated by fitzgerald in satjipto rahardjo, is that the right is placed on someone who is called the owner or subject of that right.18 land acquisition activities for development for the public interest, theoretically, are based on certain principles and are divided into two subsystems, namely land acquisition by the government because of public interest and land acquisition by the government because it is not in the public (commercial) interest.19 the land acquisition that is carried out through land acquisition or the release of land rights often results in conflict. the conflict 18 ibid at 194. 19 limbong, supra note 2 at 334. 33 | indonesian journal of law and society occurred because of weak regulation. the regulation governing land issues before law number 12/2012 on land procurement for development in the public interest is law number 5/1960 on basic regulations on agrarian principles, law number 20/1961 on revocation of rights on the land and the objects above and the rest are peraturan presiden, keputusan presiden, and peraturan menteri. regulation on land acquisition should be in the form of a law that has permanent legal force and is binding on all levels of society that concern the lives of many people. this is a significant factor causing conflicts or problems in the process of implementing land acquisition. legal protection given to people affected by land acquisition is in the form of compensation. compensation, in this case, needs to be underlined, because compensation can be said as legal protection for people affected by land acquisition when the compensation is appropriate to be given. it means that the compensation given can guarantee the rights of the community itself. in addition, compensation must also guarantee the welfare of the people affected by post-development land acquisition. in addition, the presence of law number 12 of 2012 on land procurement for development in the public interest is positive progress in the framework of improving national land regulations. this is a consequence as a country that adheres to the continental european system, indonesian legal products must be oriented to the law.20 the relevant law is a policy in the implementation of land acquisition for development in the public interest, which concerns the lives of many people and concerns the human rights of every individual affected by land acquisition. the dimensions of 'the lives of the people' and 'human rights' are the two sub-categories central in the state of pancasila and the constitution of the 1945 constitution, and therefore must be actualized in a balanced and actual manner in the legal products of the laws. 21 in addition, the emergence of law number 12 of 2012 on land procurement for development in the public interest is a breakthrough that can be used as a legal basis by the government in carrying out land acquisition for development in the public interest properly, correctly and following the law. 20 ibid at 335. 21 ibid. 34 | land acquisition for public interests: a review from the human rights context it is intended that the party implementing the land acquisition does not neglect the element of human rights of the people affected by the land acquisition. iv. conclusion procurement of land for development in the public interest is said not to violate human rights if it carried out following the applicable laws and regulations, namely law number 2 of 2012 and law number 9/1999. besides, the land acquisition must meet three elements, land acquisition, namely the limitation or definition of public interest, the mechanism of valuation of land prices and compensation, and the procedures for land acquisition adopted. besides, the implementation of land acquisition must pay attention to human rights, where human rights with land acquisition activities must be respected, protected, and protected. it is intended that the people affected by land acquisition do not feel disadvantaged in physical or financial form after development. human rights in carrying out land acquisition activities must always be considered to minimize conflicts between the party implementing land acquisition and the people affected by land acquisition. implementation of land acquisition for development in the public interest is closely related to spatial planning. in the example of the case that the author has described, it can be said that land acquisition violates human rights. this happened because the land acquisition team's deliberations did not reach consensus, so the conflict between the party implementing the land acquisition with the people affected by the land acquisition continued. for this reason, in the procedures or procedures for carrying out land acquisition that often occurs, violations of human rights are deliberations relating to the determination of the amount and proper form of compensation. second, legal protection for the rights of people affected by land acquisition is the 1945 constitution, law number 5 of 1960 on the basic agrarian regulations, law number 39 of 1999 on human rights, law number 2 of 35 | indonesian journal of law and society 2012 on land procurement for development in the public interest as well as other laws and regulations under laws governing ownership rights to land that may not be seized arbitrarily even in the public interest. other than in the form of laws and regulations, the form of legal protection provided to people affected by land acquisition is compensation in whatever form has been agreed by both parties (land acquisition team with the community affected by land acquisition), and the compensation must be appropriate based on laws and regulations. references age, nurus. political law of land procurement between public interest and protection of human rights (bandung: refika aditama, 2016). computell, asa. "state gazette of the republic of indonesia " 12. indonesia. "law number 2 of 2012", online: <http://www.bpn.go.id/ publication/regulations-perundangan/undang-undang/undangundang-nomor-2years 2012-876>. indonesia. "law number 5 of 1960", online: <http://www.bpn.go.id/ publikasi/peraturan-perundangan/undang-undang/undang-undangnomor-51960-920>. indonesia. "law number 26 of 2007", online: <http://www.bpn.go.id/ publication/regulations-perundangan/undang-undang/undangundang-nomor-26years 2007-1849>.limbong, bernhard. land acquisition for development: regulation, compensation, law enforcement (margaretha pustaka, 2011). rubaie, achmad. land procurement law for public interest (pusderankum and bayumedia publishing, 2007). santoso, urip. agrarian law, first edition ed (jakarta: kencana prenada media group, 2012). supriadi. agricultural law, sixth edition ed (jakarta: sinar grafika, 2015). 36 | land acquisition for public interests: a review from the human rights context sutedi, adrian. implementation of public interest principles in land procurement for development (jakarta: sinar grafika, 2008). tribunnews jogja. "recognition of an impacted citizen of the nyia airport : i was strangled, beaten and dragged ”, (5 december 2017), online: <http://jogja.tribunnews.com/2017/12/05/pengstrangledbeaten-and-dragged>. microsoft word 5.docx indonesian journal of law and society (2021) 2:1 105-120 issn 2722-4074 | https://doi.org/10.19184/ijls.v2i1.21945 published by the university of jember, indonesia available online 03 march 2021 * corresponding authors’ e-mail: sholahuddin.alfath@gmail.com the dispute on state institutions' authority: an analysis from the newmont divestment case syahra ramadhani university of muhammadiyah malang, indonesia maynanda shadrina university of muhammadiyah malang, indonesia sholahuddin al-fatih* university of muhammadiyah malang, indonesia abstract: it is argued that indonesia has three main institutional functions, inter alia, executive, legislative, and judiciary. they are interlinked as constitutional organs due to their respective positions and functions. in this context, the inter-state institutions have a supervisory body that controls other institutions due to checks balances. as a result, it can lead to disputes among them, usually related to constitutional authority discourse. this paper analyzed the differences in implementing the existing laws governing an institutional power and function that encouraged disputes by taking the newmont divestment case as an example. this paper's method was juridical research, with statutory, case, and conceptual approaches. the paper showed that state institutions inter alia, the president, the house of representatives, and the financial audit agency, shared the same authority to resolve the newmont divestment case. the complexity of this case involved many parties, which dealt with the contention of the purchase of 7% shares of newmont nusa tenggara company. consequently, this case was resolved and decided in the constitutional court with disputes over state institutions' authorities. this paper recommended a further elaboration on the limits and meanings of state institutions. keywords: constitutional disputes, state institutions, newmont divestment. copyright © 2021 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions submitted: 21/12/2020 reviewed: 22/12/2020 revised: 18/02/2021 accepted: 28/02/2021 how to cite: ramadhani, syahra, et al., “the dispute on state institutions’ authority: an analysis from the newmont divestment case” (2021) 2:1 indonesian journal of law and society 105-120. 106 | the dispute on state institutions’ authority: an analysis from the newmont divestment case i. introduction disputes between state institutions are not new. institutional relations consisting of balancing and controlling functions lead to disputes between institutions, especially with regard to constitutional authority. jimly asshidiqqie argued that the constitutional court plays a primary role in deciding and examining disputes over state institutions' constitutional authority.1 state institutions established by various laws and regulations result in hierarchical patterns, and this situation impacts the disputes in interpreting the state authority according to the 1945 constitution.2 with the check and balances, the relationship between state institutions is outlined to control each other and their positions equal. then, there is the possibility of conflicts arising due to their respective authority in interpreting the constitutional mandate. in the 1945 constitution, the way to resolve problems which in this case has been previously mentioned, namely that a constitutional court process can do it. it can be resolved through the constitutional court, an institution in which the institution is formed. the constitutional court's task that resolves disputes between state institutions is one of this paper's examinations. this paper revisited the fact that the court accepts not all requests for disputes for various reasons and considerations with this role. several requests for disputes were declared rejected in the court’s decision. in general, it related to disputes over authority relating to the legal standing of the petitioners themselves and whether classified as a state institution or vice versa. besides, the more complicated was the dispute of the constitutional authorities. in pertaining to the 1945 constitution as the current indonesian constitution, the possibility of a double meaning arises because it does not mention the state institution's name and powers. as a result, the court issued guidelines for procedures in disputes of state institutions' constitutional authority. the intention is to limit state institutions as either 1 luthfi widagdo eddyono, “penyelesaian sengketa kewenangan lembaga negara oleh mahkamah konstitusi” (2010) 7:3 jurnal konstitusi 547–556. 2 ignatius arga nuswantoro, “prinsip konstitusionalisme dalam dasar pertimbangan putusan sengketa kewenangan lembaga negara oleh mahkamah konstitusi di tahun 2012” (2013) 369:1 jurnal hukum 1689–1699. 107 | indonesian journal of law and society the petitioners or the respondents.3 to date, both article 24c(1) of the 1945 constitution and constitutional court's guidelines do not sufficiently provide the limits of the definition over state institution. then, it remains to result in constitutional contentions about the parties to have legal standing.4 amidst this ambiguity, it is exemplified from the disputed authorities of the president, house of representatives, and the financial audit agency or badan pemeriksa keuangan (bpk) regarding the newmont divestment case. it is classified as the state institutions' authority disputes or sengketa kewenangan lembaga negara (skln). then, it was resolved to the constitutional court. this paper is expected to contribute to existing studies, especially in mining and mineral and coal law, natural resources, and environmental law. by reading this paper, academics and practitioners will obtain an added-analysis and understanding of the dispute state institutions from the newmont divestment case. ii. methods the normative juridical approach was used in solving the problems in this study. normative legal research is a type of legal research methodology that bases its analysis on applicable laws and regulations relevant to legal issues that focus on research.5 it used literature review with law no. 3 of 2020 on amendment to law no.4 of 2009 on mineral and coal mining, law no. 17 of 2003 on state finances, and law no. 1 of 2004 on state treasury, and other legal documents. also, it referred to previous researches linked to this issue. 3 sri hastuti puspitasari, “penyelesaian sengketa kewenangan konstitusional lembaga negara sebagai salah satu kewenangan mahkamah konstitusi” (2014) 21:3 jurnal hukum ius quia iustum 402–425. 4 janpatar simamora, “problematika penyelesaian sengketa kewenangan lembaga negara oleh mahkamah konstitusi” (2016) 28:1 mimbar hukum 77. 5 peter mahmud marzuki, penelitian hukum: edisi revisi (jakarta: kencana, 2017). 108 | the dispute on state institutions’ authority: an analysis from the newmont divestment case iii. institutional aspects and dispute settlement on the newmont divestment case divestment is usually defined as a reduction in assets, either in cash or property assets. it is also defined as the sale of businesses owned by the company.6 in the newmont divestment case, the president stated the authority over the newmont divestment shares' purchase. according to the president, the government had the right or authority to manage indonesia's natural resources for the people's welfare, referring to articles 4(1), 17, 23c, and 33(3) of the 1945 constitution. the divestment released was for the interest of and benefited the people of indonesia under the national interest.7 however, the government's statements regarding this matter were not complied with by the house and bpk. the two-state institutions believed that the company divestment. the newmont nusa tenggara company should have gone through the house's permission first. however, the house argued that this institution never permitted the government investment center (pip) to purchase these shares.8 thus, the house justified the government to violate article 24(7) of law no. 17 of 2003 on state finances with respect to equity participation. then, the bpk justified the government violated two laws at once. the first violation relates to law no. 17 of 2003 on state finance and its subsequent refers to law no. 1 of 2004 on state treasury. then, the bpk states that the house must approve the government's decision in the form of government capital participation in private companies with long-term investments with stipulations by government regulations. however, this was not approved by the government. they still insisted that what was done did not violate the law. the assessment that what the government was doing was appropriate because it was not capital participation but what the government did was a non-permanent investment. therefore, it does not require 6 purnama trisnamansyah & yusuf saepul zamil, “divestasi saham asing dalam penambangan bawah tanah dihubungkan dengan kedaulatan negara” (2016) 3:3 padjadjaran jurnal ilmu hukum 609–627. 7 tjahjo sasongko, “mengurai transparansi hasil divestasi saham pt newmont”, (2018), online: kompas <https://regional.kompas.com/read/2018/01/30/23501101/ mengurai-transparansi-hasil-divestasi-saham-pt-newmont>. 8 ibid. 109 | indonesian journal of law and society permission from the house. the government argued the house had cut executive power mandated by the constitution and makes cases like this one classified as skln. this case involved many parties, including business people, state institutions, and the constitutional court, with its role as dispute breaker between state institutions. it was complex, ranging from formal meetings, war statements on social media to court proceedings. finance minister agus marto is even willing to leave his post if the government cannot buy the 7% stake in newmont.9 the mining sector in indonesia is a concern in terms of investing for foreign investors,10 given indonesia's abundant wealth of natural resources. the struggle for shares is proof that indonesia manages natural resources for economic-business interests and political battles. this case ended in the constitutional court to resolve disputes between institutions with joint considerations and policies.11 as in the above case, state institutions have arguments over this dispute case following their respective powers, which have been given, namely purely according to constitutional authority. as stated by montesquieu, although the division of power is classified into three parts of power, inter alia, the executive, legislative, and judicial powers have been exercised.12 then the emergence of new institutions that control these powers does not mean it will work well. the institutions have an equal position and control each other and differences in interpreting the constitutional mandate. the constitutional court's role in exercising its authority as a separate organ decides disputes over state institutions. 9 wisnu broto, “pemerintah belum tentu bisa beli saham newmont”, (2011), online: tempo <https://bisnis.tempo.co/read/305702/pemerintah-belum-tentu-bisa-belisaham-newmont/full&view=ok>. 10 gaby pratty ombeng, “wanprestasi terhadap isi perjanjian divestasi antara pemerintah indonesia dan pt. newmont nusa tenggara” (2015) 1:5 lex priv 37–39. 11 hafid rahardjo, “sengketa perebutan divestasi saham newmont nusa tenggara: analisis ekonomi politik" (2008-2012)” (2012) 16:1 jurnal ilmu sosial dan ilmu politik 25–44. 12 charles de montesquieu, montesquieu: the spirit of the laws (cambridge: cambridge university press, 1989). 110 | the dispute on state institutions’ authority: an analysis from the newmont divestment case not many indonesian citizens know or understand indonesian state institutions' relationship, especially the disputes between them. indonesian citizens need to understand the relationship between state government agencies based on checks and balances.13 behind this relationship, state institutions' authority also varies according to each state institution's portion. it is prevalent for disputes between state institutions. the differences in interpretation regarding the constitution are also among the causes of frequent disputes between state institutions.14 the overlapping authority between state institutions is because the commission's formation has not been based on a complete concept for an ideal constitutional arrangement. one of the cases regarding disputes over authority between state institutions in indonesia is the dispute on powers granted to the president, the house, and bpk related to the newmont divestment. this case is related to how the institutional relationship has been regulated in the law. there are frequent disputes between state institutions. therefore, it is necessary first to discuss the relationship between institutions. the relationship between the president and the constitutional court is outlined in several legal norms. they are articles 24c(2) and (3) of the 1945 constitution, articles 29(2) and 34(1) of law no. 48 of 2009 on judicial power, and law no. 24 of 2003 on the constitutional court. meanwhile, the relationship between the house and the president is regulated in several legal norms, such as: articles 5(1), 7a, 7b, 7c, 11(1), 13(2), 13(3), 14(2), 20(2), 20a, 22, 23(2), 23f(1), 24a(3), 24b(3), 24c(2), and 24c(3) of the 1945 constitution. it is also outlined in article 74 (2) of law no. 27 of 2009 on parliament law. article 33(3) of the 1945 constitution states all natural resources are controlled by the state and used for the people's welfare as much as possible. the mandate of the article above is that indonesia has a responsibility to people’s welfare.15 indonesia is a country with excellent 13 winasis yulianto, “rekonseptualisasi penyelesaian sengketa kewenangan lembaga negara” (2014) 12:1 jurnal ilmu fenomena 1111–1133. 14 lukman hakim, “sengketa kewenangan kelembagaan negara dan penataannya dalam kerangka sistem hukum nasional” (2010) jurnal hukum yustitia. 15 putu edgar tanaya, “divestasi sebagai alternatif mempertahankan viabilitas perekonomian indonesia (dari perspektif economic analysis of law)” (2016) 6:2 jurnal advokasi 231–246. 111 | indonesian journal of law and society mining materials and is also in demand with other countries.16 the newmont nusa tenggara company is a branch of a global mining company, namely the newmont mining corporation (nmc), which runs its business activities in eight countries, one of which is indonesia. this company also accommodates the interests of the west sumbawa regency government in terms of community empowerment.17 one form of the foreign investments outlined in the form of a contract of work in indonesia is the newmont nusa tenggara limited company that has focused on the mining sector.18 it is commonly agreed that indonesia is one of several countries whose natural resources. it exploits them through the mining business as a sector for revenue generation for the state. it justifies the welfare of the people in indonesia as the objectives in the fourth paragraph of indonesia's constitutional preamble. this preamble states protecting indonesian citizens through advancing public welfare, educating the nation's life, and participating in a world order based on freedom, peace, and social justice. in this case, the dispute over authority between state institutions related to the newmont divestment involved many parties (the president, the house, and the bpk), so this case ended in the constitutional court.19 the constitutional court has enormous powers, namely as a referee in deciding disputes between state institutions.20 the divestment in the mining sector always involves many parties. as commonly agreed, indonesia welcomes the business sector through foreign investment. however, sometimes it is often challenged through nationalism 16 lendry t m polii, “tinjauan yuridis terhadap divestasi pada perusahaan tambang di indonesia menurut undang-undang nomor 4 tahun 2009 tentang pertambangan mineral dan batubara” (2016) 4:9 lex sociatis 1689–1699. 17 hari akbar sugiantoro, “corporate social responsibility pt. newmont nusa tenggara dalam mengakomodasi kepentingan pemerintah dan masyarakat” (2017) j communiverse cmv. 18 djumardin & rahmawati kusuma, “penyertaan modal & pemda; pada badan usaha milik daerah” (2015) 30:1 jurnal hukum jatiswara. 19 sholahuddin al-fatih, “model pengujian peraturan perundang-undangan satu atap melalui mahkamah konstitusi” (2018) 25:2 jurnal ilmu hukum dan legislasi 247. 20 abdul ghoffar, “mewujudkan mahkamah konstitusi sebagai peradilan yang akuntabel dan terpercaya” (2018) 13:2 pandecta research law journal 76–88. 112 | the dispute on state institutions’ authority: an analysis from the newmont divestment case ideals, particularly against the mining business.21 freeport company is also one of the companies with a share divestment dispute with the indonesian government and the newmont nusa tenggara company.22 the divestment of foreign investment is an obligation for those who wish to do this business as the state capital for economic development in indonesia, which will later be given to the government. the state has a large number of shares in mining companies.23 article 35 of law no. 25 of 2007 becomes the government’s guidelines to protect in making cooperation with foreign companies in the form of a contract of work. the mining cases dealing with disputes over authority of the president, the house, and the bpk dated back to 2011. there was a drastic difference of opinion between state institutions related to the authority in this newmont divestment. the government's contract of work permit was granted to the newmont nusa tenggara company from march 1, 2000, to february 2030. it provided that in 2006 this company must acquire shares and give priority to the central government.24 in 2007 the offering of shares or divestment of shares to the indonesian side would be carried out in turns. the controlling party would control 51% of the ownership of this company belongs to the indonesian government. in 2008 for the release of 7% shares of this company must transfer shares to the indonesian government or local governments or companies appointed by the government.25 this company is under the provisions that if the time has exceeded the limit, namely after the production of foreign share ownership or within thirty days of share negotiations. the shares will be offered to the central government. 21 raras ayu mirati, “kajian hukum divestasi pada perusahaan pertambangan asing di indonesia” (2016) 42:1 lex sociatis 1–10. 22 erni yoesry, “divestasi pt. freeport indonesia” (2019) 49:1 jurnal hukum dan pembangunan 153–179. 23 trias palupi kurnianingrum, “kajian hukum atas divestasi saham bidang pertambangan indonesia (studi kasus pt. newmont nusa tenggara dan pt. freeport indonesia” (2012) jurnal majelis. 24 zainal asikin, “perjanjian antara pemerintah dengan pihak swasta dalam kaitannya dengan divestasi saham pt. nnt di nusa tenggara barat” (2013) 42:3 masalahmasalah hukum 327–346. 25 lalu pria wira s, “sinkronisasi kebijakan kerjasama antar daerah dalam divestasi saham pt newmont nusa tenggara” (2015) 27:1 mimbar hukum 43. 113 | indonesian journal of law and society however, suppose the indonesian government does not accept the offer. it is transferred to a company owned by the indonesian nation or a foreign company held by an indonesian national. after many negotiations, it was finally agreed that the company had total assets of up to $ 3.52 billion and a 14% share in the exemption quota for 2008 and 2009 worth $ 493.6 million. after that, the nusa tenggara barat government thought of buying a 10% share of the 2006 and 2007 divestment shares by establishing a joint company called daerah maju bersaing company.26 after many purchases and stock competition, the remaining shares amounted to 7%.27 in this context, the newmont nusa tenggara company hopes that the indonesian side will be interested in buying the 7% shares. finally, the government conveyed its intention to buy a 7% divestment stake by submitting a letter to the ministry of energy and mineral resources. meanwhile, agus martowardojo, as served as minister of finance in 2009, asked the government investment center (pip) to represent the government in the purchase of the seven percent stake. in 2010, on september 27, to be precise, the government or the central government confirmed that they wanted to take the 7% share. in 2011, an agreement was made to purchase shares by the newmont nusa tenggara company with the government investment center (pip) as the government representative and nusa tenggara partnership bv at the ministry of finance office. a prolonged heated debate resurfaced in october when the house considered that the government had broken laws and regulations. the house of representatives considered that it never allowed pip to purchase its shares' 7% divestment.28 the house stated that the government's action violated article 24(7) of law no. 17 of 2003 on state finances regarding equity participation. the bpk strengthened it after conducting an audit at the house's request, and the bpk agreed by looking at articles 24 and 41(4) of law no. 17 of 2003 on state finance. 26 rahardjo, supra note 11. 27 ibid. 28 sasongko, supra note 7. 114 | the dispute on state institutions’ authority: an analysis from the newmont divestment case the difference of opinion between the house and the government is getting fiercer. meanwhile, the government believes that the purchase of 7% shares by pip does not require approval or permission from the house because, according to the government, this is the president's power in managing finances with the constitution, and the minister of finance has mandated its implementation.29 the finance minister remains in his stance that government action constitutes a non-permanent investment and does not constitute capital participation. therefore, it does not require permission from the house. the difference of opinion resulted in a dispute of authority between the president and the house using a legal basis when implementing capital against the government. according to the president's view, it is a constitutional authority mentioned above, centered on the norms regulated in article 23c of the 1945 constitution as explained in law no.1 of 2003 on state treasury. however, article 23c does not clearly state the president's constitutional authority about handling the state. however, it regulates "financial matters" by dividing authority to the president and the house. however, the house continued to carry out attacks on the government. likewise, the government made counterattacks against the house. meanwhile, the bpk, which was also involved in the conflict, argued that this government's action violated the state finance law and violated the state treasury law. with the strength of the arguments and the firm stance of each of the three state institutions, president susilo bambang yudhoyono finally transferred this problem to the constitutional court into a dispute over authority between state institutions be investigated and decided by the constitutional court. here is a request from the government for the constitutional court. the constitutional court has held several hearings on skln and heard statements from several parties, including the government, the house of representatives, and the supreme audit agency. the government decided ten people with legal education backgrounds as 29 neduro maril, hendro saptono & siti mahmudah, “penyelesaian sengketa divestasi saham pt newmont nusa tenggara dalam pengaturan penanaman modal asing secara langsung (foreign direct investment) berdasarkan putusan mk no. 2/skln-x/2012” (2016) 5:2 diponegoro law review 1–14. 115 | indonesian journal of law and society expert witnesses. it is an economist, a judge at the constitutional court, and a bureaucrat. the house brought seven witnesses, the bpk had nine witnesses. in comparison, the constitutional court presented five witnesses, namely anggito abimanyu as a former bureaucrat and an economic expert. nusa tenggara barat governor zainul majdi, martono hadianto as president director of the newmont nusa tenggara company, arif hidayat as a mining practitioner in nusa tenggara barat, and fitra rino as a local house of representatives’ member from the sumbawa regency. meanwhile, the government's request for the constitutional court to grant it requests that the government's 7% divestment is lawful and constitutional.30 the house denied the government's request in the skln session: article 15(5) of law no. 17 of 2003 on state finances. the national expenditure budget or anggaran pendapatan dan pembelanjaan nasional (apbn) approved by the house includes details down to organizational units, functions, programs, activities, and types of expenditures. it states that pip as a blu must be stated in detail and obtain the house's approval as referred to in article 15(5) of law no. 17 of 2003 on state finances.31 the constitutional court's chairman mahfud md said that the government and the house must make a joint policy. then, they purchase the petitioner authorizes 7% of the newmont nusa tenggara company shares with the approval of respondent i (the house). constitutional court decision no.2/skln-x/2012 explains that according to article 27 of law no. 17 of 20003 on state finance, the funds to buy shares of the newmont nusa tenggara company are included in the national expenditure budget so that the share purchase can only be carried out.32 in this sense, the constitutional court decided not to accept the government's 30 the petitioner believes that as the exercise of constitutional authority based on article 4(1), articles 17(1), 23c, and 33(3) of the 1945 constitution, the applicant has the constitutional authority to enforce the investment in the purchase of 7% divestment shares of pt nnt in 2010 without the need for respondent i's prior approval. 31 the house of representatives (respondent) is not mistaken and has never questioned the constitutional authority of the president (petitioner) in articles 4(1), 17 (1), 23c, 33(3) of the 1945 constitution becomes groundless (null and void). 32 maril, saptono & mahmudah, supra note 29. 116 | the dispute on state institutions’ authority: an analysis from the newmont divestment case request. the constitutional court's consideration regarding its decision, investment capital is the ministry of finance calculation's authority. however, the purchase of 7% shares is idr 1 trillion. the rest through the pip budgeting procedure in the 2011 national expenditure budget not directly made to buy 7% of the newmont shares because it must first be discussed with the house to provide joint impacts. in the end, this purchase was canceled due to the need for hearings with the house. iv. in search of an alternative in resolving disputes over state institutions' authorities, the 1945 constitution grants the constitutional court as the adjudication institution for this case. however, there are still problems that make it challenging to apply in actual cases. the problem is getting more complicated because it is accompanied by the development of institutions that have existed since the reform era. with the many new state institutions formed after the reformation, there will also be more conflicts of interest and authority between state institutions.33 the constitution establishes a state institution. apart from the constitution, a state institution is also formed, known as a state commission formed based on law. even so, all state institutions are legally recognized by the state. in disputing state institutions' authority, not all state institutions can fulfill the requirements as respondents or applicants. there are also state institutions regulated in the 1945 constitution. however, their authority is only stated at the law (undang-undang) level or based on the constitutional order. their authority is regulated in the law.34 the situation as stated above makes it difficult to resolve disputes over the authority of state institutions. for example, the process of resolving disputes over state institutions' power is only regulated in laws (undang-undang). these institutions are, for instance, the attorney general, corruption eradication commission, child protection commission, national human rights commission, business competition supervisory commission. also, 33 eddyono, supra note 1. 34 simamora, supra note 4. 117 | indonesian journal of law and society they include other institutions regulated in the presidential decrees.35 if the state institution's problems are submitted to the constitutional court, the constitutional court cannot immediately accept the complaint. there are limitations in the constitutional court's authorities. in the case of state institutions' authority disputes, the court is limited to resolve between state institutions whose powers are enumerated in the constitution. following the previous analysis, to implement the constitutional court's power to resolve these disputes effectively, it is necessary to confirm the limits of state institutions' authority and the meaning of state institutions. if these two problems are successfully resolved, it asserts that the constitutional court can effectively decide disputes over state institutions. v. conclusion this case closely related to state institutions' relationship resulted in frequent misunderstandings among state institutions due to the different interpretations. there was no consensus between the government and the house regarding the newmont divestment and disputes' legal basis. the constitutional court's decision did not grant for request considering that the purchase of 7% shares was the government's authority. however, it would be better if it was based on the house of representatives' agreement and discussed with the house because it is a state fund. this decision confused the government. through pip, the government's divestment, a public service agency (blu), and investment do not require prior consent from the house. however, the president remained to want to comply with the constitutional court's decisions. as a result, the purchase of the newmont nusa tenggara company shares was canceled and had to be re-discussed by the government and the house's approval. in settlement of disputes over state institutions, some rules apply in article 24 c (1) of the 1945 constitution. the state institution has been mentioned in the constitution, but its authority is regulated in the law. thus, it is necessary to resolve disputes between state institutions. 35 ibid. 118 | the dispute on state institutions’ authority: an analysis from the newmont divestment case references al-fatih, sholahuddin, “model pengujian peraturan perundang-undangan satu atap melalui mahkamah konstitusi” (2018) 25:2 jurnal ilmu hukum dan legislasi 247. asikin, zainal, “perjanjian antara pemerintah dengan pihak swasta dalam kaitannya dengan divestasi saham pt. nnt di nusa tenggara barat” (2013) 42:3 masalah-masalah hukum 327–346. broto, wisnu, “pemerintah belum tentu bisa beli saham newmont”, (2011), online: tempo <https://bisnis.tempo.co/read/305702/ pemerintah-belum-tentu-bisa-beli-saham-newmont/full&view=ok>. djumardin & rahmawati kusuma, “penyertaan modal & pemda pada badan usaha milik daerah” (2015) 30:1 jurnal hukum jatiswara. eddyono, luthfi widagdo, “penyelesaian sengketa kewenangan lembaga negara oleh mahkamah konstitusi” (2010) 7:3 jurnal konstitusi 547– 556. ghoffar, abdul, “mewujudkan mahkamah konstitusi sebagai peradilan yang akuntabel dan terpercaya” (2018) 13:2 pandecta research law journal 76–88. hakim, lukman, “sengketa kewenangan kelembagaan negara dan penataannya dalam kerangka sistem hukum nasional” (2010) jurnal hukum yustitia. kurnianingrum, trias palupi, “kajian hukum atas divestasi saham bidang pertambangan indonesia (studi kasus pt. newmont nusa tenggara dan pt. freeport indonesia” (2012) jurnal majelis. maril, neduro, hendro saptono & siti mahmudah, “penyelesaian sengketa divestasi saham pt newmont nusa tenggara dalam pengaturan penanaman modal asing secara langsung (foreign direct investment) berdasarkan putusan mk no. 2/skln-x/2012” (2016) 5:2 diponegoro law review 1–14. marzuki, peter mahmud, penelitian hukum: edisi revisi (jakarta: kencana, 2017). 119 | indonesian journal of law and society montesquieu, charles de, montesquieu: the spirit of the laws (cambridge: cambridge university press, 1989). nuswantoro, ignatius arga, “prinsip konstitusionalisme dalam dasar pertimbangan putusan sengketa kewenangan lembaga negara oleh mahkamah konstitusi di tahun 2012” (2013) 369:1 jurnal hukum 1689–1699. ombeng, gaby pratty, “wanprestasi terhadap isi perjanjian divestasi antara pemerintah indonesia dan pt. newmont nusa tenggara” (2015) 1:5 lex priv 37–39. polii, lendry t m, “tinjauan yuridis terhadap divestasi pada perusahaan tambang di indonesia menurut undang-undang nomor 4 tahun 2009 tentang pertambangan mineral dan batubara” (2016) 4:9 lex sociatis 1689–1699. puspitasari, sri hastuti, “penyelesaian sengketa kewenangan konstitusional lembaga negara sebagai salah satu kewenangan mahkamah konstitusi” (2014) 21:3 jurnal hukum ius quia iustum 402–425. rahardjo, hafid, “sengketa perebutan divestasi saham newmont nusa tenggara: analisis ekonomi politik (2008-2012)” (2012) 16:1 jurnal ilmu sosial dan ilmu politik 25–44. raras ayu mirati, “kajian hukum divestasi pada perusahaan pertambangan asing di indonesia” (2016) 42:1 lex sociatis 1–10. sasongko, tjahjo, “mengurai transparansi hasil divestasi saham pt newmont”, (2018), online: kompas <https://regional.kompas.com/ read/2018/01/30/23501101/mengurai-transparansi-hasil-divestasisaham-pt-newmont>. simamora, janpatar, “problematika penyelesaian sengketa kewenangan lembaga negara oleh mahkamah konstitusi” (2016) 28:1 mimbar hukum 77. sugiantoro, hari akbar, “corporate social responsibility pt. newmont nusa tenggara dalam mengakomodasi kepentingan pemerintah dan masyarakat” (2017) jurnal communiverse cmv. 120 | the dispute on state institutions’ authority: an analysis from the newmont divestment case tanaya, putu edgar, “divestasi sebagai alternatif mempertahankan viabilitas perekonomian indonesia (dari perspektif economic analysis of law)” (2016) 6:2 jurnal advokasi 231–246. trisnamansyah, purnama & yusuf saepul zamil, “divestasi saham asing dalam penambangan bawah tanah dihubungkan dengan kedaulatan negara” (2016) 3:3 padjadjaran jurnal ilmu hukum 609–627. wira s, lalu pria, “sinkronisasi kebijakan kerjasama antardaerah dalam divestasi saham pt newmont nusa tenggara” (2015) 27:1 mimbar hukum 43. yoesry, erni, “divestasi pt. freeport indonesia” (2019) 49:1 jurnal hukum dan pembangunan 153–179. yulianto, winasis, “rekonseptualisasi penyelesaian sengketa kewenangan lembaga negara” (2014) 12:1 jurnal ilmu fenomena 1111–1133. microsoft word 3.docx indonesian journal of law and society (2021) 2:1 59-78 issn 2722-4074 | https://doi.org/10.19184/ijls.v2i1.21449 published by the university of jember, indonesia available online 03 march 2021 __________________________ * corresponding authors’ e-mail: guiwico88@gmail.com the future of constitutional complaint in indonesia: an examination of its legal certainty standy wico* tarumanagara university, indonesia michael tarumanagara university, indonesia patricia louise sunarto tarumanagara university, indonesia anastasia tarumanagara university, indonesia abstract: to date, there is no trial mechanism for indonesian citizens to claim their rights through the constitutional complaint, even if the constitutional court has existed since 2003. consequently, there has been a mechanism for upholding and promoting constitutional rights, and it has been regarded to improve indonesian democracy. adhere to this view, in democratic states like indonesia and germany, constitutional rights are often ignored by the state, even though these rights are essential in the rule of law. this paper aimed to revisit the range of a constitutional complaint following its legal certainty wield to the indonesian constitutional court. this paper used juridical research by examining legal principles, legal systematics, legal synchronization, legal history, legal theory, and using a comparative law approach. this paper showed that as the constitutional complaint different from judicial review, the adoption of this mechanism should be an alternative instead of an ultimate mechanism under the constitutional rights doctrine. to ensure legal certainty to a constitutional complaint, a legal basis was needed by regulating and applying it for actual implementation in society. meanwhile, the constitutional court in adjudicating a constitutional complaint could be realized through the amendment of the 1945 constitution. keywords: constitutional complaint, constitutional court, indonesian constitution. copyright © 2021 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions submitted: 18/12/2020 reviewed: 19/12/2020 revised: 08/02/2021 accepted: 11/02/2021 how to cite: wico, standy et al., “the future of constitutional complaint in indonesia: an examination of its legal certainty” (2021) 2:1 indonesian journal of law and society 59-78. 60 | the future of constitutional complaint in indonesia: an examination of its legal certainty i. introduction historically, indonesia had adopted a rechtsstaat concept or a government based on the law as both mentioned by referring to legal scholars and the constitutional definition.1 a rechtsstaat was originally applied in the civil law, which later spread in modern indonesia through the dutch's legal colonization.2 one of rechtsstaat’s significant elements deals with protecting human rights manifested by the government in examining actions against constitutional rights. such a kind of constitutional rights violation is not a recent problem. however, the inadequacy of the mechanism to uphold and promote constitutional rights through the court has been recently accommodated in indonesia after the constitutional amendment from 1999 to 2002.3 if the government violates constitutional rights against citizens, the constitutional court can promote constitutional rights, which in particular, power typically includes the constitutional complaint. the former constitutional chief justice mahfud md argued that the constitutional complaint is the lawsuit filed to the constitutional court for claiming the violations of constitutional rights.4 however, the indonesian constitutional court lacks this procedure as part of its judicial power. 5 even a constitutional complaint is closely related to protecting the constitutional rights violated by a public institution's policies. as the constitutional complaint's absence wields to the constitutional court, some judicial decisions are increasingly important in the current legal discourse. the constitutional court made such judicial decisions in the decision was no. 16/puu-i/2003 on the review of article 68 of the supreme 1 sulaiman sulaiman, “rekonseptualisasi hukum indonesia” (2017) 12:2 pandecta research law journal 98–110. 2 this concept includes the protection of human rights, state's arrangement power, lawbased government, and the administrative court. oemar seno adji, seminar ketatanegaraan undang-undang dasar 1945 (jakarta: seruling masa, 1966) at 24. 3 muhammad bahrul ulum & nilna aliyan hamida, “revisiting liberal democracy and asian values in contemporary indonesia” (2018) 4:1 constitutional review 111–130 at 123. 4 moh. mahfud md, demokrasi dan konstitusi di indonesia: studi tentang interaksi politik dan kehidupan ketatanegaraan (jakarta: rineka cipta, 2003). 5 ibid. 61 | indonesian journal of law and society court law no. 14 of 1985 in which the petitioners asked for reconsidering the supreme court decision. this petition was rejected by the constitutional court because the petition filed was a constitutional complaint case for which that the constitutional court does not have such power. 6 on the other hand, the constitutional court considered a constitutional complaint,7 through its decision no. 102/puu-vii/2009 on the review of the presidential election law no. 42 of 2008 dealing with the permanent voters' list.8 it was deemed to breach petitioners’ constitutional rights in the 2009 presidential election.9 the complaint was filed because of the dissatisfaction with the general election commission that ignored unregistered voters in the permanent voters’ list.10 the constitutional court implicitly agreed on the constitutional complaint by regulating certain norms in providing an alternative for unregistered voters to remain participating in the election through citizenship cards or passports.11 this paper contained further recommendations about this issue. it mainly dealt with the challenges of law enforcement due to the possibility of the constitutional court’s power for the constitutional complaint following the distinction or limitation of authority granted to the administrative court and the constitutional court. it was essential for further examination in avoiding the power overlap and ensuring legal uncertainty. the other analysis was about the number of judges needed due to additional court cases for future directions after adopting the constitutional complaint. the accumulation of cases that decrease the judges' panel concentration should be avoided after an adjustment of judges. 6 hamdan zoelva, “constitutional complaint dan constitutional question dan perlindungan hak-hak konstitusional warga negara” (2012) jurnal media hukum 19:1 at 160. 7 i dewa gede palguna, pengaduan konstitusional (constitutional complaint) upaya hukum terhadap pelanggaran hak-hak konstitusional warga negara (jakarta: sinar grafika, 2013). 8 muhammad bahrul ulum & dizar al farizi, “implementasi dan implikasi putusan mk terhadap hak konstitusional warga negara indonesia” (2009) 6:3 jurnal konstitusi at 93. 9 ibid. 10 ibid. 11 ibid at 95. 62 | the future of constitutional complaint in indonesia: an examination of its legal certainty this paper aimed to examine the constitutional complaint's scope, and its legal certainty granted to the constitutional court. this paper has three primary issues. first, it discussed to what extent the scope of a constitutional complaint. second, it analyzed to what extent the constitutional court's legal certainty related to examining constitutional complaint cases. third, to what extent the constitutional court's position and power granted for a constitutional complaint in indonesia. ii. methods this paper was juridical research by examining legal principles, legal systematics, legal synchronization, legal history, legal theory, and using a comparative law approach.12 the data used in this paper was secondary data, mostly from books and journal articles.13 besides, this paper descriptively presented qualitative data to explain the main issues. the comprehensive study started from the philosophical concept followed by a juridical description of the lack of regulatory instruments in adopting the constitutional complaint. iii. the scope of the constitutional complaint at the outset, it is necessary to outline the scope of a constitutional complaint. the scope is of a divider and a differentiator between the various understandings about a constitutional complaint. this discussion is intended to avoid misunderstandings and mistakes in the future. in the constitutional complaint concept, every erroneous government measure, which potentially violates constitutional rights can be reported to the court. the constitutional complaint emphasizes the government's actions as a subject, not the government's laws or regulations. these subjects are government officials, both individual and state institutions, to undertake their responsibilities and functions. 12 soerjono soekanto, pengantar penelitian hukum (jakarta: ui press, 2007). 13 ibid. 63 | indonesian journal of law and society a constitutional complaint is different from a lawsuit to the administrative court. the administrative court allows people disadvantaged or aggrieved by the government's actions to challenge before the court. the lawsuit's object filled to the administrative court is a government's actions in the actual form or beschikking. then, it is necessary to overview the distinction between constitutional complaint and judicial review as the preliminary discussion. because both of these mechanisms are closely similar and often equated in practice. on the other hand, it is not so familiar in the indonesian society about the constitutional complaint. consequently, many citizens who want to defend their constitutional rights do not respond to it through the legal mechanism. the constitutional complaint is often linked to constitutional rights as causal relations under the constitutional doctrine. constitutional rights are the rights guaranteed by the constitution.14 meanwhile, a constitutional complaint is a lawsuit filed by an individual or by a citizen to the court against the negligence of a government action taken by an institution or public authority, which violates the concerned's fundamental rights.15 it appears that a constitutional complaint is more likely to lead to a complaint about the violation of citizens' constitutional rights. therefore, a constitutional complaint is different from the existence of a judicial review, which has become the constitutional court's authority. judicial review is a mechanism to examine a law or legislation against the 1945 constitution. it is different in scope from a constitutional complaint. in the constitutional complaint, the scope is the constitutional rights violated by the government's actions that should not have been carried out. the violation of constitutional rights is an essential issue to be resolved. it requires an authorized judiciary to adjudicate the case. recently, the cases of violation of constitutional rights have been filed through a judicial review mechanism containing a constitutional complaint. one of them is the case filed by main bin rinan through no. 16/puu 14 i dewa gede palguna, supra note 7 at 39. 15 ibid at 35. 64 | the future of constitutional complaint in indonesia: an examination of its legal certainty i/2003.16 in this case, the complaint was filed because of the absence of a constitutional complaint in indonesia. judicial review is an alternative for citizens who feel their constitutional rights have been aggrieved. the mechanism for applying a constitutional complaint through a judicial review is crucial, giving citizens legal protection to defend their constitutional rights violated by the government. the scope of constitutional complaint still cannot be ascertained because it has not been regulated in indonesia. we can compare it to several countries that have implemented this constitutional complaint's regulations to understand their scope. the german constitutional court is one of the courts that applies the constitutional complaint mechanism to its jurisdictions. it is crucial to examine the prohibition of slaughtering animals sued by the muslims in german according to their freedom of religion and worship under their beliefs.17 the prohibition of the slaughter of sacrificial animals was deemed not to violate the constitution.18 as a consequence, it cannot be examined through the german constitutional court. however, this prohibition violated religious freedom. germany's constitutional complaint is outlined in article 93(1), (4a), and 4b of grundgesets. based on article 23(1) part ii of the german basic law, a request for a constitutional complaint must be covered by a minimum of three points. first, the lawsuit must clearly state the policies or decisions in the form of court decisions, administrative procedures, laws, and other policies deemed detrimental, accompanied by the decision number, government regulation number, and its enforced date until the time it is affected.19 second, the lawsuit must clearly explain the constitutional rights that the enactment of regulation or decision has violated? 20 third, the lawsuit must clearly explain how the 16 heru setiawan, “mempertimbangkan constitutional complaint sebagai kewenangan mahkamah konstitusi” (2018) lex jurnalica 4:1 at 12. 17 vino devanta anjas krisdanar, “menggagas constitutional complaint dalam memproteksi hak konstitusional masyarakat mengenai kehidupan dan kebebasan beragama di indonesia” (2016) 7:3 jurnal konstitusi 185–208 at 188. 18 ibid. 19 arsyad sanusi, tebaran pemikiran hukum dan konstitusi (jakarta: milestone, 2011) at 838 20 ibid. 65 | indonesian journal of law and society regulation has or can provide constitutional impairment that the constitution has guaranteed.21 the other pattern is a constitutional complaint which applied in south korea. the south korean constitutional court's authority to adjudicate constitutional complaint cases is outlined in article 68(1) and (2) of the korea constitutional court act. 22 the examination of the request for a constitutional complaint was carried out without hearing the parties' statements. if the south korean constitutional court grants this request for constitutional complaint, every state institution and the local governments are bound by the decision. 23 from the example, the two countries above (germany and south korea) have previously regulated and implemented the constitutional complaint mechanism in their country, which refers to constructing the constitutional complaint mechanism in indonesia. as in german practice, there is a precise regulation in the basic law of 1949, wielding the german constitutional court (bundesverfassungsgerich)24 to adjudicate constitutional complaint cases. according to this basic law, it is necessary to explain what constitutional rights are being violated and how this government action can bring out the constitutional loss that the constitution has guaranteed. 25 indonesia’s consideration to adopt such a mechanism is possible by amending the laws regarding the constitutional complaint. a clear explanation of what constitutional rights are violated and how the violations can occur will help prevent the abuse of the constitutional complaint in the future. this provision was also implemented in the constitutional complaint in south korea. a constitutional complaint can be filed by the individual or the party who has the authority or legal standing to file it in their constitutional court. 26 however, this lawsuit must be preceded by the judicial review process. if the court rejected the judicial review's motion, then the case can 21 ibid. 22 ibid at 840. 23 i dewa gede palguna, supra note 7 at 473-474. 24 arsyad sanusi, supra note 19 at 838. 25 ibid. 26 i dewa gede palguna, supra note 7 at 463-464. 66 | the future of constitutional complaint in indonesia: an examination of its legal certainty only be examined through the constitutional complaint. 27 if this mechanism were applied in indonesia, it could reduce the abuse of a constitutional complaint. the party who wants to use a constitutional complaint needs to propose a judicial review to clear the legal standing. these countries have clearly stated the scope of a constitutional complaint in their court system, which differentiates it from judicial review. learn from these two countries. citizens' constitutional rights need more attention from the state because of their different scope from judicial reviews. therefore, a constitutional complaint has a different scope from a judicial review. a constitutional complaint has focused on citizens' constitutional rights that have been violated due to government actions. accordingly, to determine this constitutional complaint's scope, we need to learn from other countries because indonesia's constitutional complaint has not been regulated yet. iv. legal certainty of the constitutional complaint in indonesia in discussing the constitutional complaint, it cannot be detached from the legal certainty. legal certainty becomes increasingly essential to uphold and promote constitutional rights due to article 1(2) of the 1945 constitution. it states that sovereignty lies in the hand of the people and is implemented according to the constitution. this article emphasizes constitutional democracy in indonesia. thus, in maintaining a legal certainty, it is necessary first to understand the principle of legal certainty. according to van apeldoorn, "legal certainty can also mean the things that can be determined by law in concrete things."28 meanwhile, according to maria s.w. sumardjono, legal certainty requires a set of laws and regulations that operationally supports its implementation. empirically, the existence of these laws and regulations needs to be implemented consistently."29 27 ibid. 28 van apeldoorn, pengantar ilmu hukum (jakarta: pradnya paramita, 1990) at 24-25. 29 maria s.w. sumardjono, “kepastian hukum dalam pendaftaran tanah dan manfaatnya bagi bisnis perbankan dan properti” jakarta, 6 agustus 1997 at 1, cited in muhammad insan c. pratama, kepastian hukum dalam production sharing contract (fh uii, yogyakarta, 2009) at 14. 67 | indonesian journal of law and society from these two definitions, legal certainty can be manifested if laws regulate it. it can be an interesting issue to discuss because legal certainty is key to ensuring human rights. following the constitutional mandate in the 1945 constitution, it has been the government's responsibility to protect and become citizens' human rights. legal certainty can then become one of the instruments for the government to start undertaking these constitutional mandates. from the legal perspective, violations of human rights are deemed to violate constitutional rights. constitutional justice arief hidayat agreed that constitutional rights were inseparable from human rights because they are guaranteed in the constitution. 30 the definition of the violation has been explained in article 1(6) of human rights law no. 39 of 1999. it states that the breach is the actions of a person or group (including state officials), whether intentional or unintentional or negligence unlawfully reduce, obstruct, limit, and/or deprive a person or group of people whose human rights guaranteed by this law, and do not get, or it is feared that there will be no fair and correct legal settlement, due to the legal mechanism. it is undeniable that a constitutional complaint contributes to promoting democracy despite the mechanism to restore constitutional rights that the government previously impeded. according to the uncertainty of indonesia's constitutional complaint, it can indirectly violate indonesian citizens' human rights. citizens who get unfair treatment or feel aggrieved by government officials' negligence do not have the right or a place to reveal their complaint. this right will only emerge and be born if there is a law that regulates it. hence, a constitutional complaint must be legally declared in the indonesian constitution. also, an institution is needed for citizens who wish to file a constitutional complaint. this institution refers to the state organ, which can examine the constitution, namely the constitutional court. thus, the constitutional court has the power to handle a constitutional complaint. this discussion about the legal certainty of the constitutional complaint can be explained. first, legal certainty exists if there is legislation or positive law in indonesia which regulates it. legal certainty will arise if there is a 30 maria rosari, mk: hak konstitusional warga negara terkait ham, antara news, online < https://www.antaranews.com/berita/578271/mk-hak-konstitusional-warganegara-terkait-ham>. 68 | the future of constitutional complaint in indonesia: an examination of its legal certainty regulation regarding a constitutional complaint in the constitutional court law. so it is necessary to examine the existence of rules regarding this constitutional complaint in the 1945 constitution and the constitutional court law. according to article 24c(1) of the 1945 constitution, the constitutional court's power is limited and briefly formulated to examine laws against the constitution. this article only describes the general terms of the constitutional court's power but not a constitutional complaint. reciprocally, in the constitutional court law no. 24 of 2003, article 10(1) of the constitutional court law describes the constitutional court's power. however, there is no authority to try this constitutional complaint mechanism. in fact, before enacting the third amendment of constitutional court law, there had been a motion to extend the constitutional court's power in adjudicating a constitutional complaint. this motion was stated early in article 10a(1) in the constitutional court bill's initial draft. on the other hand, the head of the working committee (panja) of the constitutional court bill, adies kadir, admitted that this motion was included in the problem inventory list (dim).31 the related provision on the constitutional complaint was removed from the draft constitutional court bill before it was passed, along with other regulations. it was considered to have provided much democratic line for citizens to complain when their constitutional rights have been violated, such as to the administrative court and the indonesian ombudsman. in practice, even if there were no regulations regarding the constitutional court's power in receiving a constitutional complaint, there have been many cases of a constitutional complaint in indonesia. for those cases, the issue of constitutional complaint has an urgency at recent. the citizens who want to complain about their losses due to the government's actions can perceive whether they report this case and fulfill their rights. it is necessary to discuss the constitutional complaint in indonesia. the first case is an examination of article 67 of the supreme court law number 14 of 1985 regarding the 31 rofiq hidayat, ruu mk dihapuskan dan alasan penghapusan konstitusional komplain, hukum online: <https://www.hukumonline.com/berita/baca/lt5f4ded279 bec6/ruu-mk-disahkan-dan-alasan-penghapusan-konstitusional-komplain/>. 69 | indonesian journal of law and society supreme court reconsideration decision's review contradicting article 28d(1) of the 1945 constitution. this case registered in the constitutional court as main bin rinan and his partners.32 the parties filed the petition in an attempt to void the supreme court's decision regarding decision no. 179 pk/pdt/1998 because this decision was considered to infringe their constitutional rights, outlined in article 28 d(1) of the 1945 constitution. the constitutional court finally rejected the petition under the ground of no regulation on indonesia's constitutional complaint. according to this first case, the constitutional court was fully obedient to the constitutional court law, which did not regulate a constitutional complaint. the second case about the kpu arranged the permanent voters' list, which was considered negligent and detrimental to the applicant's rights in the 2009 presidential election. the petitioners, refly harun and maheswara, appeal to presidential election law's judicial review against the 1945 constitution. on the completion, the constitutional court wisely decided to accept this petition so that voters who were not registered in the permanent voters' list can participate in the presidential election by showing their identity card or passport. these two cases show a significant difference in the constitutional complaint. on the one hand, when a petitioner filed a constitutional complaint against the constitution, the constitutional court immediately reject the case for the lacking of authority to be resolved. meanwhile, when it comes to kpu negligence cases that harm society on a larger scale, the constitutional court immediately granted this constitutional complaint. through these cases, it appears that the constitutional court is still inconsistent in accepting and rejecting a constitutional complaint. hence, there is no legal certainty to the settlement. the appropriate way to the constitutional court is to maintain and apply the principle of legal certainty. as previously discussed, legal certainty will emerge if an arrangement is contained in indonesian law and implemented in society. therefore, in resolving cases of a constitutional complaint, which are also constitutional 32 heru setiawan, supra note 16 at 12. 70 | the future of constitutional complaint in indonesia: an examination of its legal certainty rights of indonesian citizens, it should be put under the authority to try the constitutional court. v. the future direction of a constitutional complaint in indonesia the constitutional court does not yet have the authority to examine cases of a constitutional complaint in indonesia, both in the constitution and in the constitutional court act. rather, the constitutional court is only authorized to handle cases to examine the law against the constitution, settle the disputes over the state institutions whose authorized in the constitution, decide the dissolution of political parties, and decide the disputes over the results of the general elections. according to the constitution, the constitutional court also can make decisions on the house of representatives' contention regarding alleged violations by the president or vice president. these provisions are stated in article 24c of the 1945 constitution. article 10 of the constitutional court law extends the above constitutional article with the additional definition of constitutional court's first and final decision regarding president and/or vice president impeachment.33 these powers are described as the five constitutional powers granted to the constitutional court. these limited authorities show that the constitutional court is still not being the constitution's guardian progressively and needs to expand its powers through the constitution. thus, the constitutional court is the only institution that can accomplish the universal constitutional rights of citizens. the constitutional complaint's authority has been proposed in the revision of the law on the constitutional court, namely article 10a. however, it was canceled because it was suspected that it would cause a cumulation of constitutional complaint cases to the constitutional court. 33 muhammad bahrul ulum, “mekanisme pemakzulan presiden dan/atau wakil presiden menurut uud 1945 (antara realitas politik dan penegakan konstitusi)” (2010) 7:4 jurnal konstitusi 131–158 at 146. 71 | indonesian journal of law and society palguna explained that two forms of constitutional rights protection could be pursued through the constitutional court: judicial review and constitutional complaint. in constitutionality testing or judicial review, the law that being the object is the legislatures. in contrast, in a constitutional complaint, the object is the acts or negligences of government or public officials. in addition, in examining the laws' constitutionality, the issues that examined whether the norms or lawmaking process against the constitution and constitutional rights. in the case of a constitutional complaint, it discussed whether public officials' action has resulted from the violation of constitutional rights.34 according to such power related to the protection of constitutional rights, palguna stated that the only way to protect its constitutional rights in indonesia was to examine laws against the constitution.35 it implies that citizens can submit a complaint to the state when there are norms in the law that are considered contrary to the constitutional norms. they cannot complain about any mistakes or negligence of officials or the government's actions that lead to the violation of their constitutional rights. it also agreed by firmansyah arifin as the head of the national law reform consortium (krhn) that there are frequent violations of the constitution. however, citizens who are violated do not have access to report.36 the rationality of the 1945 constitution requires that citizens who feel their constitutional rights are violated by law have the right to apply or sue the constitutional court. it is convenient with article 1 and article 29 of the constitutional court act, which regulates the existence of laws related to petition submissions by petitioners. in this case, citizens feel that their constitutional rights have been violated. to protect constitutional rights, this argument is inadequate since the constitutional innovation emitted by the dictum of article 24c(1) of the 1945 constitution only protects 34 i dewa gede palguna, supra note 7 at 111. 35 herma yanti, “gagasan constitutional complaint sebagai kewenangan baru mahkamah konstitusi dalam perlindungan hak konstitusional” (2018) wajah hukum 2:2 at 188. 36 hukumonline, menggagas constitutional complaint lewat kasus ahmadiyah. online: <https://www.hukumonline.com/berita/baca/hol19269/menggagas-constitutionalcomplaint-lewat-kasus-ahmadiyah-/>. 72 | the future of constitutional complaint in indonesia: an examination of its legal certainty constitutional rights from the probability of violations caused by the law. it shows that the constitutional court's limitative power is only to adjudicate violations of the law against citizens' constitutional rights. meanwhile, the violations of the rights guaranteed by the 1945 constitution are often caused by various factors such as regulations and concrete government actions. the rule under the legislature can be formally examined at the supreme court. in contrast, the government or state official's concrete steps can be examined in the administrative court. however, the two judiciary institutions' authority became overlapping power, including the constitutional court's judicial review. this overlapping power becomes an obstacle to examining the government's constitutional violations that do not depend on a single judicial institution. the 1945 constitution has not assigned all public authorities' actions (legislative, executive, and judicial) as a legal object that the constitutional court can examine.37 the constitutional court was established to ensure the constitution as the highest law to be adequately enforced. therefore, the constitutional court is usually referred to as the guardian of the constitution. in conceiving its function as the guardian of the constitution, ahmad syahrizal argue that the constitutional court's authority is in judicial review of the law and is obliged to protect and ensure human rights through the manifestation of the constitutional principles. the functions and authorities of the constitutional court does not only place the importance of the interpretive principles of the 1945 constitution but also takes the necessary steps for the realization of human rights following the mandate of the constitution.38 the other reasonable argument refers to the nature of the constitutional complaint as a part of the constitutional interpretation related to constitutional rights, which are the constitution's contents. thus, there is no reason for any other state institutions other than the constitutional court to examine a 37 fatkhurohman, et al., memahami keberadaan mahkamah konstitusi di indonesia (bandung: citra aditya bakti, 2010) at 71. 38 ahmad syahrizal, “urgensi proteksi hak konstitusi oleh mkri” (2008) jurnal konstitusi 5:1 at 67. 73 | indonesian journal of law and society constitutional complaint.39 accordingly, law related to constitutional complaint does not have a legal basis. indonesian scholars like khairul fahmi explained that indonesia needs a judicial institution with a special authority to accept citizen complaints, especially for cases that are no longer the authority of existing judicial institutions such as the supreme court and judicial institutions under the supreme court. he gave an example where the state institutions lost in court, the court decisions were not carried out. therefore, citizens must be given access to reclaim the petition to strengthen citizen rights that state administrators may neglect. hence, the final target of the constitutional complaint is to fulfill and embodying human rights.40 it becomes one of the legal opinions that legislators can consider in overcoming the vacuum of the constitutional complaint's norm. indonesia needs to immediately adopt a constitutional complaint as the constitutional court's new authority because many public claims regarding humanity issues that the court cannot settle. if this mechanism did not exist, the advocacy efforts of non-governmental organizations (ngos) and other civil society movements would only be a discourse without settlement from the government or the courts. however, enhancing the constitutional complaint authority into constitutional court's jurisdictions is a complicated task due to the limitations of the constitutional court's authority granted by the constitution, especially article 24c of the 1945 constitution. the main problem is to amend the constitutional court's authority, and we must amend the constitution first. the constitutional complaint that is without clear restrictions results in the judiciary's dualism in an administrative settlement. the dualism can be avoided by limiting the judiciary's object. if the objects are administration recovery related to the administrative case, they can be brought to the administrative court. while the constitutional complaint will only adjudicate constitutional rights issues that have been violated due to the 39 gugun el guyanie, “urgensi pengujian constitutional complaint oleh mahkamah konstitusi republik indonesia” (2013) in right 3:1 at 192-193. 40 mahkamah konstitusi, menimbang pengaduan konstitusional di tangan mk, online: <https://www.mkri.id/index.php?page=web.berita&id=11641>. 74 | the future of constitutional complaint in indonesia: an examination of its legal certainty enactment of the administrative officials' decision. the number of cases that the constitutional court examined in 2020 was 139 cases,41 where 89 cases were decided by the court.42 through this additional authority of constitutional complaint, it indeed will be increasing the cases to the constitutional court. the possibility that many issues of a constitutional complaint brought to the constitutional court can be resolved by adding its judges. the additional member of judges is an adjustment to the expansion of the authority of the constitutional court. therefore, there are no more problems to enact the constitutional complaint as a new authority of the indonesian constitutional court. vi. conclusion in ensuring the constitutional complaint to have legal certainty in indonesia, the examination through juridical, historical and comparative legal analysis becomes inevitable. the existing regulations in indonesia do not regulate whether the constitutional court can handle a constitutional complaint. it results in inconsistencies in the constitutional court's decisions on filing the cases of a constitutional complaint. consequently, the constitutional court's power should include a constitutional complaint by taking into account many public complaints of related cases. in the end, the amendment of the 1945 constitution should consider this inclusion as the constitutional guarantee for constitutional complaint in indonesia. on the other hand, regarding this absence of constitutional complaint in the constitutional court, legislators should regulate it in the constitutional court law to ensure this legal certainty. 41 mahkamah konstitusi, rekapitulasi perkara pengujian undang-undang, online: <https://www.mkri.id/index.php?page=web.rekappuu>. 42 ibid. 75 | indonesian journal of law and society references adji, oemar seno, seminar ketatanegaraan undang-undang dasar 1945 (jakarta: seruling masa, 1966). apeldoorn, van, pengantar ilmu hukum (jakarta: pradnya paramita, 1990). guyanie, gugun el, “urgensi pengujian constitutional complaint oleh mahkamah konstitusi republik indonesia” (2013) in right 3:1. hidayat, eko. perlindungan hak asasi manusia dalam negara hukum indonesia (bandar lampung: asas, 2019). hidayat, rofiq, ruu mk dihapuskan dan alasan penghapusan konstitusional komplain, hukum online: <https://www. hukumonline.com/berita/baca/lt5f4ded279bec6/ruu-mk-disahkandan-alasan-penghapusan-konstitusional-komplain/>. hukumonline, menggagas constitutional complaint lewat kasus ahmadiyah. online: <https://www.hukumonline.com/berita/baca/hol 19269/menggagas-constitutional-complaint-lewat-kasus-ahmadiyah/>. ibrahim, johnny, teori dan metodologi penelitian hukum normatif (malang: bayumedia publishing, 2005). fatkhurohman, et al., memahami keberadaan mahkamah konstitusi di indonesia. (bandung: citra aditya bakti, 2010). krisdanar, vino devanta anjas, “menggagas constitutional complaint dalam memproteksi hak konstitusional masyarakat mengenai kehidupan dan kebebasan beragama di indonesia” (2016) 7:3 jurnal konstitusi 185–208. mahfud md, moh., demokrasi dan konstitusi di indonesia: studi tentang interaksi politik dan kehidupan ketatanegaraan (jakarta: rineka cipta, 2003). mahkamah konstitusi, rekapitulasi perkara pengujian undangundang, online: <https://www.mkri.id/index.php?page=web.rekap puu>. 76 | the future of constitutional complaint in indonesia: an examination of its legal certainty mahkamah konstitusi, menimbang pengaduan konstitusional di tangan mk, online: <https://www.mkri.id/index.php?page=web.berita&id= 11641>. palguna, i dewa gede. pengaduan konstitusional (cnostitutional complaint) upaya hukum terhada pelanggaran hak-hak konstitusional warga negara (jakarta: sinar grafika, 2013). pratama, muhammad. kepastian hukum dalam production sharing contract (yogyakarta: fh uii, 2009). sanusi, arsyad, tebaran pemikiran hukum dan konstitusi (jakarta: milestone, 2011). rosari, maria, mk: hak konstitusional warga negara terkait ham, antara news, online <https://www.antaranews.com/berita/578271/ mk-hak-konstitusional-warga-negara-terkait-ham>. soekanto, soerjono. pengantar penelitian hukum (jakarta: ui press, 2007). subiyanto, achmad edi, “perlindungan hak konstitusional melalui pengaduan konstitusional” (2011) jurnal konstitusi 8:5. sulaiman, sulaiman, “rekonseptualisasi hukum indonesia” (2017) 12:2 pandecta research law journal 98–110. sumardjono, maria s.w. “kepastian hukum dalam pendaftaran tanah dan manfaatnya bagi bisnis perbankan dan properti. “makalah disampaikan dalam seminar kebijaksanaan baru di bidang pertanaha n. dampak dan peluang bagi bisnis properti dan perbankan” (1997). syahrizal, ahmad, “urgensi proteksi hak konstitusi oleh mkri” (2008) 5:1 jurnal konstitusi. ulum, muhammad bahrul, “mekanisme pemakzulan presiden dan/atau wakil presiden menurut uud 1945 (antara realitas politik dan penegakan konstitusi)” (2010) 7:4 jurnal konstitusi 131–158. ulum, muhammad bahrul & dizar al farizi, “implementasi dan implikasi putusan mk terhadap hak konstitusional warga negara indonesia” (2009) 6:3 jurnal konstitusi. 77 | indonesian journal of law and society ulum, muhammad bahrul & nilna aliyan hamida, “revisiting liberal democracy and asian values in contemporary indonesia” (2018) 4:1 constitutional review 111–130. yanti, herma, “gagasan constitutional complaint sebagai kewenangan baru mahkamah konstitusi dalam perlindungan hak konstitusional” (2018) 2:2 wajah hukum. zoelva, hamdan, “constitutional complait dan constitutional question dan perlindungan hak-hak konstitusional warga negara” (2012) 19:1 jurnal media hukum. 78 | the future of constitutional complaint in indonesia: an examination of its legal certainty this page intentionally left blank microsoft word 17496-99z_article text-47033-3-11-20210120.docx indonesian journal of law and society (2020) 1:2 163-180 issn 2722-4074 | doi: 10.19184/ijls.v1i2.17496 published by the university of jember, indonesia available online 30 september 2020 * corresponding authors’ e-mail: fanny.tanuwijaya@unej.ac.id child-friendly cities and districts as human rights protection in indonesia’s decentralization context fanny tanuwijaya* university of jember, indonesia fiska maulidian nugroho university of jember, indonesia abstract. this paper aims to examine the implementation of the child friendly cities and districts in indonesia, as part of the decentralized agenda of current indonesian reform. child protection has become one of the current problematic issues. this protection includes the effort to guarantee and ensure the right to live, grow, develop, and participate fully in realizing each child's future. the indonesian government introduces regional child protection, it is childfriendly cities and districts as a part of the critical address responding to the issue to the extent the government provide a serious protection for the infant generation. historically, the united nations children's fund (unicef) initiated this concept, whose purpose was to aspire to children's rights through the goals, programs, policies, and local governance structures. to date, there remain many regional governments that do not have regulations on child-friendly cities or districts. this paper considers indonesia's regions experiencing in regulating and implementing the child-friendly cities and districts that have become a benchmark for the other regions. in the end, this paper concludes that each region must regulate and implement the child-friendly cities with regional characteristics into a series of regional regulations, particularly preceded by the regional regulation. keywords: human rights, child protection, children rights, child-friendly cities. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions submitted: 20/04/2020 reviewed: 20/06/2020 revised: 15/08/2020 accepted: 20/09/2020 164 | child-friendly cities and districts as human rights protection i. introduction child protection ensures children their rights to live, grow, develop, and participate optimally based on human prestige and dignity.1 this protection aims to guarantee the children's rights are fulfilled,2 including in the extensive scope of education and health assurance. to this extent, it also encompasses the protection against sexual violence. based on the figure released by the indonesian child protection commission (kpai) in 2011– 2016, there were eight types of child protection cases that are susceptible to children. they are social and child in danger situation, family and alternative nurture, religion and culture, civil right and participation, health and drugs, education, pornography, and cybercrime also children's problem facing the law. to be sure, children are the legal subject that should be protected due to their infancy3 in terms of age, physical, and life experience.4 this condition puts the children fragile that needs protection. since the introduction of decentralization in indonesia, the local government has been granted local autonomy in managing administration according to the local needs. this idea has then emerged to introduce child protection based on region, like child-friendly cities (kla). the united nations children’s fund (unicef) has initiated the child-friendly cities to aspiring children's rights through aims, programs, policies, and local government structures. indonesia subsequently adopts and establishes them through regulation of minister for women's empowerment and child protection number 11/2011 on development policy of child-friendly cities and districts. that ministerial regulation then becomes the step-stone for the regional governments to implement child protection. even at the central government level, the law of child protection has participated in following the regional government's roles with a new spirit as the organizer 1 article 2. law no. 35/2014 on the amendment to law number 23/2002 on child protection. 2 section. 3. law no. 35/2014 on the amendment to law number 23/2002 on child protection. 3 abintoro prakoso, hukum perlindungan anak (yogyakarta: laksbang pressindo, 2016) at 35. 4 ibid at 31. 165 | indonesian journal of law and society parties of child protection.5 thus, the regional government's role becomes strategic in implementing child protection. the regional governments play an essential role in implementing childfriendly cities. however, no many local governments have set it into the local policy. the ministry of women's empowerment and child protection stated only 100 regions in indonesia have already addressed child protection through local policy.6 the local government is supposed to prioritize child protection, realized through child-friendly cities. to date, 40 cities and districts in indonesia are entitled the child-friendly cities and districts by the ministry of women's empowerment and child protection.7 the ministry stated that there were 328 cities and districts which are categorized as child-friendly cities and districts. only two of them have entered the main phase of this category, such as surabaya and surakarta.8 it asserts that when child-friendly cities and districts is considered the strategic policy in implementing child protection. therefore, the government has an arduous task in ensuring child protection in the local government context. ii. decentralization in indonesia: a historical context the fall of suharto’s administration shifted the reformation period that demanded to reconfigure central-local relations resulted in regional autonomy.9 the revised 1945 constitution of indonesian subsequently 5 ibid, article 20. 6 media indonesia, "perda perlindungan anak masih minim" (29 december 2017), online: <https://mediaindonesia.com/read/detail/138381-perda-perlindungan-anakmasih-minim>. 7 republika, “40 kota di indonesia menuju kota layak anak | republika online”, online: <https://nasional.republika.co.id/berita/nasional/umum/17/07/13/ot197m40-kota-di-indonesia-menuju-kota-layak-anak>. 8 republika, "belum ada kota/kabupaten layak anak | republika online," online: <https://nasional.republika.co.id/berita/nasional/umum/17/10/19/oy1e0n335belum-ada-kotakabupaten-layak-anak>. 9 harold a crouch, political reform in indonesia after soeharto (singapore: institute of southeast asian studies, 2010). 166 | child-friendly cities and districts as human rights protection grants regional government autonomy and central assistance.10 in short, the explanation about the definition of autonomy itself can be categorized into two, inter alia, restricted autonomy and broad autonomy.11 each region can be specified as restricted autonomy districts,12 first, regional affairs are determined categorically, and their development is also arranged in a certain way. second, if the supervision and monitoring system are well accomplished, the regional autonomy loses its independence in organizing autonomous affairs. third, the financial communication system between a central and regional government causes several things like restricting the regional government's financial capability to confine the regional government space. it will be different upon the region's broad autonomy in which the usual broad autonomy concept is departed from all government affairs principles and become the regional affairs, except to the things prescribed as central government affairs. the region can implement local government enforcement based on decentralization and deconcentration. decentralization is an authorization to arrange and organize the governance to the lower government units. however, since decentralization is always connected with the independence status or autonomy, the discussion about decentralization also means autonomy.13 thus, this decentralization or autonomy principle's primary emphasis is to hand over the central government's full responsibilities to the regional government in certain authorities. even though the regional government has full regional responsibility, it does not mean such a locality becomes absolute. instead, there are many other powers retained by the central government. 10 it was amended, section 18 article (1) and (2) are: article (1) the unitary state of the republic of indonesia consists of provinces, and each province has districts and cities, with each province, districts, the city has its regional administration, regulated by law. this regional government shall work its government matters under the principle of regional autonomy and duty to assist. 11 bagir manan, menyongsong fajar otonomi daerah (yogyakarta: pusat studi hukum fh uii, 2001) at 87. 12 ibid at 37. 13 ibid at 140. 167 | indonesian journal of law and society meanwhile, concerning child protection, it must be seen first to notice deeply and philosophically of child protection itself. one of them is age categorization. in the regional, the age categorization principle for children will produce good regulation for implementing the protection. the child's definition is outlined in the un convention on the right of the child 1989. article 1 defines a child as every human being who is below eighteen years old. however, he/she is also given the recognition of different age restrictions that can be applied in national legislation.14 nevertheless, a few states give different restrictions in defining somebody that can be said as a child or adult seeing from age and activity perspective and thinking. in the united kingdom, criminal liability is given to children who are ten years old, but it is not for political involvement. the children can participate or have political rights when they are already above 18 years old.15 in scotland, children have interval ages 7 – 15 years, so they are prosecuted in a juvenile court (young offender's court) on its interval age. meanwhile, in south australia, children are 8 to 18 years old, and in canada, it is under 12 years.16 in the united states, twenty-seven states prescribe child’s age restriction between 8 and 18 years and other six states conclude it between 8 and 17 years. other states assumes it between 8 and 16 years. the netherlands sets between 12 and 18 years as child’s age restriction. meanwhile, srilanka sets it between 8 and 16 years.17 this difference in children's definition in each country is because there is a social influence on child development. the social and cultural activity and economic activity in each country significantly influence each child's maturity level. however, the children's restriction from their age perspective is not always precise. each person's age condition related to maturity is something pseudo and relative. the reality shows that a child is still 14 imam susilowati, pengertian konvensi hak anak (jakarta: unicef, 2003) at 2. 15 marlina, peradilan pidana anak di indonesia (bandung: refika aditama, 2009). 16 ibid. 17 paulus hadisuprapto, juvenile delinquency: pemahaman dan penanggulangannya (bandung: citra aditya bhakti, 1997) at 8. 168 | child-friendly cities and districts as human rights protection considered to have limited ability, but that child is already grown-up. therefore, the maturity determination of someone seen from the age perspective is not precise. according to a psychologist, age maturity cannot be determined by age because there is a younger child but already can think like a grown-up. in contrast, a child is already grown-up but cannot still think like an adult. this psychologist’s point of view becomes the issue and big question for all criminal expertise and psychologist in prescribing the age restriction of criminal liability.18 child development consists of several development stages, which can be categorized based on the parallelity of a child's physical development with a child's mental development. those categorizations are divided into three phases.19 the first phase is started when the children are born, from 0 to 7 years, which can be mentioned as an early childhood and mental abilities development stage, body-function development, emotional development, baby language and language meaning for children, and early sexuality development for children. the second phase is begun at an interval of 7 to 14 years, called childhood. it is categorized into the elementary school period for children started at the age of 7 to 12 years, an intellectual period, and early adolescence, pre-puberty early puberty is known as the puerperal period. the third phase is begun on interval age 14-21 years, called adolescence, in real definition, i.e., puberty phase, and adolescence. there is a corresponding period and a transition period of a child becoming a grownup. elisabeth b hurlock elaborated on the classification of age stages of a person connected with the mental development to become four stages, as follows: (a) child, somebody who is under 12 years old; (b) pre-adolescence, somebody who is between 12 – 15 years old;(c) adolescence, somebody who is between 15 – 18 years old; and (d) adult, somebody who is above 18 years.20 meanwhile, singgih gunarso suggested the classification of the child to adult development is related with the age and the tendencies of mental 18 marlina, supra note 15 at 36. 19 ibid at 7. 20 kusno adi, kebijakan kriminal dalam penanggulangan tindak pidana narkotika oleh anak (malang: umm press, 2009) at 5. 169 | indonesian journal of law and society condition, which can be classified into five stages, i.e.: (a) child, it is somebody who is under 12 years old; (b) early-teen, it is somebody who is 12-15 years old; (c) teenager, somebody who is 15-17 years old; (d) young adult, somebody who is 17-21 years old; and (e) adult, it is somebody who is above 21 years old.21 each age level has its mental characteristics. the mental development tasks experienced by each somebody’s age stages, especially the characteristics of child development, until they reach adolescence. it can be elaborated as follows: (a) child, it is somebody who is under 12 years old, tends to be in the stage of all learning process, starting from learning to differentiate right and wrong, learn physical skills for general games; learn to adapt with friends of the same age. (b) pre-teen, somebody who is between 12-15 years old. this phase is often called as puberty period, has tendencies like busy to learn mastering his/her body because of the imbalance body size and body inconvenience, high emotion, easy to be offended, anxious, high temper, unconfident, inferiority, and afraid of failing, has a realistic self-concept, hard to be understood, egocentric, loss of social support, tends to be antisocial. feel bored towards school and social activities, achievement declining in all subjects;(c) adolescence, the person who has interval age 15 – 18 years, showing the mental tendency like walking in an anomie situation, at which they have to leave his/her childish habits and learn values, patterns, and new behavior (as an adult).22 the commitment to give children protection was started when indonesia ratified the convention on the rights of the child (kha) in 1990. reformation, which has been running for approximately two decades, has not shown a significant alteration towards children's protection. it is because of the issues which happened to the children raise instead of declines. based on child protection cluster, indonesia child protection commission (kpai) is categorized 8 (eight) types of cases which have high frequency to befall the children, i.e., social and children are in danger situation, family and emergency nurture, religion and culture, civil right and participation, health 21 paulus hadisuprapto, supra note 44 at 9–10. 22 kusno adi, supra note 47 at 6. 170 | child-friendly cities and districts as human rights protection and drugs, education, pornography, and cybercrime and children’s problem facing the law (abh). among those 8 (eight) types, abh reaches the first grade in quantity within five years, i.e., 2011-2016, both children as an actor, victim, or witness. one of the problems which are highlighted to experience increasing is the violence towards children. this increasing trend is found out based on the report from various institutions in several regions like the civil registry and population agency (disdukcapil), women and children protection unit of special criminal investigation directorate (ditreskrimum), integrated service for women and children’s empowerment (p2tp2a), family planning and womenempowerment agency (bkbpp), family planning, community, and women’s empowerment agency(bkbpmp), and also indonesian child protection commission (kpai). west nusa tenggara (ntb), east java, west java, and south borneo are several revealed regions.23 moreover, this kind of case characteristic is like an iceberg phenomenon, i.e., there is a high possibility of many unrevealed cases. the cases above are a tiny measurement from many cases that happened to the kids. the indonesian child protection commission (kpai) has warned that indonesia is in an emergency of crimes against humanity towards children. a similar statement was stated by the chairman of the indonesian women's congress (kowani), dr. giwo rubianti wiyogo. he revealed that children have severe problems to gain optimal protection.24 if it is reviewed based on children's rights, the children's right to disservice on each cluster will be found out. for example, related to civil rights, the child has the right to have the birth certificate as a recognition representation of a state for their existence. the birth registration has a strategic role because it is a form of formal recognition 23 republika, "laporan kekerasan anak di daerah meningkat | republika online," online: <https://www.republika.co.id/berita/koran/halaman-1/16/11/21/ogzcs315laporan-kekerasan-anak-di-daerah-meningkat>. 24 tribunnews, "permasalahan yang dihadapi anak dan perempuan sepanjang 2017 dalam catatan kowani halaman 1 tribunnews.com", online: <https://www.t ribunnews.com/nasional/2017/12/29/permasalahan-yang-dihadapi-anak-danperempuan-sepanjang-2017-dalam-catatan-kowani?page=1>. 171 | indonesian journal of law and society to an individual child 25 through law number 23/2006 on the population administration, every child has a right to be reported in an implementing agency where the birth events occur no later than sixty days after the birth. at least fifty million children have not gotten the birth certificate because of administrative fulfillment reasons.26 in the part of family and nurture, one of the serious problems is early-age marriage. that early-age marriage in indonesia is considered high. indonesia is in the second position in southeast asia and 7th grade worldwide. this early-age marriage is disadvantageous for children’s rights, especially girls. their future will be affected. in this case, the child’s rights, which are seized, are the right to education, right to livelihood, social-political right, and freedom from violence.27 iii. the result of the child protection implementation in the regional context article 1 of the 1945 constitution states that indonesia shall be a unitary state in a republic and based on law. explicitly, indonesia is based on the law, not power (machtsstaat). as a result, the government follows the constitution system in fulfilling tasks, not based on absolutism.28 then, in chapter xa section 28b states that each child has the right to live, grow up, and develop and the right of protection from violence or discrimination. the constitution guarantees a child’s right, which is deserved to be protected and fulfilled. the part in the child’s right is the part that becomes sanction if it is separated from the effort delegated to each city/district lived by children. fear, anxiety, and all of the discrimination forms and legal protection or law 25 kpai. "'akta kelahiran hak anak yang terabaikan," (22 july 2013), online: komisi perlindungan anak indonesia kpai <https://www.kpai. go.id/berita/akta-kelahiranhak-anak-yang-terabaikan>. 26 hukumonline, “terabaikan, 50 juta anak indonesia tidak memiliki akta kelahiran”, (23 july 2016), online: hukumonline.com <https://www.hukumonline.com/berita/ baca/lt5792447bd5551/terabaikan--50-juta-anak-indonesia-tidak-memiliki-aktakelahiran>. 27 hukumonline, "pernikahan dini dinilai langgar hak anak perempuan" (16 october 2014), online: hukumonline.com <https://www.hukumonline.com/berita/ baca/lt543f9219071a8/pernikahan-dini-dinilai-langgar-hak-anak-perempuan>. 28 simon nahak, hukum pajak perpajakan : konsep penal policy tindak pidana perpajakan dalam perspektif pembaharuan hukum (malang: setara press, 2014) at 2. 172 | child-friendly cities and districts as human rights protection enforcement towards a child’s problem facing the law deserve to be paid attention by state, especially district/city, where children live. precisely, the regulation issued by the minister of women’s empowerment and child protection of state of indonesia has established 2 (two) regulations which the guarantee districts/cities to be able to be concluded as child-friendly cities/districts, i.e., ministerial regulation p3a no. 11/2011 concerning the indicator of child-friendly cities/districts. it is, of course, synchronized with the condition in each city/district which based on law number 32/2014 on the regional government (city/district) has had the regional autonomy for implementing the decentralization principle, deconcentration principle, and duty to assist which one of them is to issue the regional regulation about child-friendly cities/districts. within 12 years since the beginning of the child-friendly cities and districts trial, there are 126 cities/districts which receive the achievement of kla out of 349 cities/districts that initiate kla.29 though that achievement status has meant that city/district has not fully gotten status as child-friendly cities and districts, this achievement is for cities/districts in a stage towards child-friendly cities and districts. ironically, the ministry of women’s empowerment and child protection stated that this time child-friendly cities and districts in indonesia is still nil. meanwhile, the achievement given to surakarta and surabaya are categorized in the main category and denpasar, gianyar, padang, magelang, depok, bogor, and sleman has nindya category.30 the ministry has the design that, in the year 2030, cities/districts in indonesia have the status of child-friendly cities and districts. as a result, the commitment and seriousness become the need from the various party who have roles and participate in fulfilling the child’s rights, i.e., government, society, mass media, and the business world. 29 media indonesia, "empat provinsi raih penghargaan pelopor provinsi layak anak," (24 july 2019), online: <https://mediaindonesia.com/read/detail/248859-empatprovinsi-raih-penghargaan-pelopor-provinsi-layak-anak>. 30 okezone, “hari anak nasional: ironis! belum ada kabupaten & kota layak anak di indonesia : okezone lifestyle”, (23 july 2017), online: <https://lifestyle. okezone.com/read/2017/07/23/196/1742182/hari-anak-nasional-ironis-belum-adakabupaten-kota-layak-anak-di-indonesia>. 173 | indonesian journal of law and society carrying predicate as the leading category in child-friendly cities and districts achievement, stakeholders' struggle in surabaya and surakarta deserves to be appreciated. as much as 31 indicators, which are later pursed to become 24 indicators divided into six clusters, must be fulfilled to actualize child-friendly cities and districts. the first indicator in achieving childfriendly cities and districts is the institutional aspect. the first point of ministerial regulation of child-friendly cities and districts states that there are constitutions and policies related to fulfilling a child’s rights. for example, surabaya is a city that has gotten several achievements as a child-friendly cities and districts. since 2011, surabaya achieves the madya category of child-friendly cities and districts, nindya category in 2012, 2013, and 2015. until 2017, along with surakarta, surabaya gets the achievement of child-friendly cities and districts for main category. at least, the regional government of surabaya has provided many legal products that are responsive to children. among them are regional regulation number 6/2011 on the implementation of child protection and regional regulation number 2/2012 on the children welfare implementation. even the dprd of surabaya city intends to complete the regional regulation of child protection implementation, which has existed to push the child protection model in the modern era. this regional regulation is present in the era where information technology has not rushed as it does now.31 besides, its presence coincides with the development planning deliberation (musrenbang) 2018 in order to arrange the regional government work plan 2019. the mayor of surabaya, tri rismaharini, prioritizes and concerns the child protection with the hope that children will not be victims in the future.32 even in the institutional aspects, surabaya's regional government provides layering institutions to implement child protection. in the level of kelurahan 31 tribunnews, "dprd minta perda perlindungan anak segera diperbaharui surya," online: <https://surabaya.tribunnews.com/2018/01/26/dprd-minta-perda-perlindung an-anak-segera-diperbaharui>. 32 inews, "risma: musrenbang surabaya 2018 fokus pada perlindungan anak inews portal", online: <https://jatim.inews.id/berita/risma-musrenbang-surabaya-2018fokus-pada-perlindungan-anak>. 174 | child-friendly cities and districts as human rights protection (administrative village), there is a task force(satgas) of women and children protection, in sub-district, there is community-based crisis centre (pkbm), and also at the city level, there is integrated services centre for protection of women and children (ppptp2a).33 the regional government of surabaya along with the population control, the agency of women’s empowerment, and child protection (dp5a), regional organization (opd), police, social services, public health office, national narcotics agency (bnn), and another civil society organization (lsm) do the innovations in order to give a better environment for child growth and development. through the agency of women’s empowerment and child protection (dp5a), a family learning center (puspaga) has the function as service of family problem resolution until the consultation for the couple who are going to get married. education is not left behind. education authority cooperated with the college through corporate social responsibility (csr) to push dropout rates in part of education. the public area is for children to run their activities like dancing, musical practice, karawitan, and martial training. also another innovation like nutrition fulfillment and child immunization, the provision of 1400 community reading parks, house of language and house of mathematics, healthy internet program, and also a program of kampunge arek suroboyo, which consists of education kampong(kampung pendidikan), safe kampong (kampung aman), nurture kampong (kampung asuh) and also command centre as the place for complaining about missing children and suicidal trial.34 as the receiver of child-friendly cities and districts achievement for the main category, it does not mean that surabaya has no problems with children. the women and children protection unit of polrestabes surabaya is still receiving the report of violence towards children until now. the violence that happened to children is like an iceberg phenomenon. almost 90% of violence cases reported are sexual violence in which the crime 33 possure, "kota layak anak, mari belajar pada surabaya aktual dan kasual," online: <http://possore.com/2017/01/05/kota-layak-anak-mari-belajar-pada-surabaya>. 34 detik.com, "surabaya dapat apresiasi tim juri nasional kota layak anak," online: detiknews <https://news.detik.com/adv-nhl-detikcom/d-3523488/surabaya-dapatapresiasi-tim-juri-nasional-kota-layak-anak>. 175 | indonesian journal of law and society actors are their inner circles, people they know.35 the violence towards children, which keeps continuing, is later followed-up by stakeholders related to the opd, society, or other related parties. the different things that happened in surakarta, the effort towards childfriendly cities and districts, not only get appreciation from the indonesian government but also the under-secretary-general of the united nations the issue of child protection. this international organization also appreciates the steps the surakarta government chooses. surakarta, which has received the predicate as child-friendly cities and districts since 2006 with madya predicate. it has a higher rank child-friendly cities and districts, i.e., the main predicate used as a reference for other cities/districts. related to the institutional development, surakarta has local regulation number 4/2012 on child protection. besides, the regional government of surakarta initiates and has cooperation with the ministry of social affairs (kemensos) and unicef informing the institution which has a vital role in protecting the children in a regional area, i.e., the service centre for integrative children social welfare (pusat layanan kesejahteraan sosial anak integratif/plksai). before the plksai was born, there is an integrated service for women and children in surakarta (pusat pelayanan terpadu bagi perempuan dan anak koa surakarta/ptpas), but in order to actualize child protection comprehensively and also gives the child social welfare service maximally, so plksai is made. the head of child protection of bapernas pppa and kb, supraptiningsih, stated four primary duties of plksai deals with implementing the complaint service and reference related to social welfare and child protection. these duties also relate to rehabilitation implementation and social reintegration for children and families that experience the social welfare and child protection problem, execute the advocacy related to the child's social welfare, and organize the 35 radar surabaya, “miris! kekerasan terhadap anak terus terjadi”, online: <https://radarsurabaya.jawapos.com/read/2018/03/04/54153/miris-kekerasanterhadap-anak-di-surabaya-terus-terjadi>. 176 | child-friendly cities and districts as human rights protection data system and information related to social welfare child protection problem.36 child-friendly facilities have been provided to support the child's growth and development for children who become violent victims, smart-parks, and half-way houses for hiv/aids patients. what makes it interesting is, in the smart-park, provides the children rides for playing and learning, like an amusement park, library, spaces for playing gamelan instruments, ballroom, two amphitheaters, computer learning, a particular radio station for konata children, and a family learning center (puspaga). they provide psychology services for parents if they want to have consultation concerning a kid or family.37 child-friendly community health centre (puskemas), child friendly school, and child incentive card (kia), in part of transportation it is the existence of safe zone for children and the driving ban for under 17 years old, child forum, and breastfeeding corner, gwjb, which is a ban to turn on the tv on sunday to friday starting from 18.30-20.30. also, it becomes a facility by providing child-friendly services in surakarta. generally, the surakarta achievement as child-friendly cities and districts in the main category has reached 93% or +/932 points out of 1000 standard point as child-friendly cities and districts. next is the general illustration of the achievement of child-friendly cities and districts in surakarta. the institution indicator has reached 100%, and it is even stated over standard, civil right and freedom 98%, family environment and child nurture 91%, essential health and welfare 89%, education, free time utilization, and cultural activity reach 95% and also better protection reaches 89%.38 therefore, the implementation of child protection at regional in an integrated manner and coordination with various elements imply in creating a conducive environment for child growth and development even participate 36 surakarta government, "surakarta miliki pusat layanan anak terintegrasi – pemerintah kota surakarta," online: <http://surakarta.go.id/?p=4112>. 37 surakarta government, "pbb pun acungi jempol program anak di surakarta," (28 february 2017), online: pemerintah kota surak <https://surakarta.go.id/?p=4340>. 38 surakarta government, "surakarta kota layak anak," (24 july 2017), online: pemerintah kota surak <https://surakarta.go.id/?p=6471>. 177 | indonesian journal of law and society in helping to protect and fulfill the children’s rights as it is mentioned in kha and the law of child protection. iv. conclusion as the cornerstone of the regional autonomy, decentralization encourages the establishment of the child-friendly cities and districts in indonesia. this establishment has been addressed through several regulations in ensuring child protection in the local context. this local initiative reflects the guidelines set by unicef as an international institution that works for children. in practice, however, the limited number of regional governments to address the child-friendly cities has become new vital challenges. these challenges are the administrative affairs, such as the budget system and institutional coordination. references abintoro prakoso. hukum perlindungan anak (yogyakarta: laksbang pressindo, 2016). bagir manan. menyongsong fajar otonomi daerah (yogyakarta: pusat studi hukum fh uii, 2001). crouch, harold a. political reform in indonesia after soeharto (singapore: institute of southeast asian studies, 2010). detik.com. “surabaya dapat apresiasi tim juri nasional kota layak anak”, online: detiknews <https://news.detik.com/adv-nhldetikcom/d-3523488/surabaya-dapat-apresiasi-tim-jurinasional-kota-layak-anak>. hukumonline. “terabaikan, 50 juta anak indonesia tidak memiliki akta kelahiran”, (23 july 2016), online: <https://www.hukumonline. com/berita/baca/lt5792447bd5551/terabaikan--50-juta-anakindonesia-tidak-memiliki-akta-kelahiran>. hukumonline. “pernikahan dini dinilai langgar hak anak perempuan”, (16 october 2014), online: <https://www.hukumonline.com/ 178 | child-friendly cities and districts as human rights protection berita/baca/lt543f9219071a8/pernikahan-dini-dinilai-langgarhak-anak-perempuan>. imam susilowati. pengertian konvensi hak anak (jakarta: unicef, 2003). inews. “risma: musrenbang surabaya 2018 fokus pada perlindungan anak inews portal”, online: <https://jatim.inews.id/berita/rismamusrenbang-surabaya-2018-fokus-pada-perlindungan-anak>. kpai. “‘akta kelahiran hak anak yang terabaikan”, (22 july 2013), online: komisi perlindungan anak indones kpai <https://www.kpai.go.id/ berita/akta-kelahiran-hak-anak-yang-terabaikan>. kusno adi. kebijakan kriminal dalam penanggulangan tindak pidana narkotika oleh anak (malang: umm press, 2009). marlina. peradilan pidana anak di indonesia (bandung: refika aditama, 2009). media indonesia. “empat provinsi raih penghargaan pelopor provinsi layak anak”, (24 july 2019), online: <https://mediaindonesia.com/read/detail/248859-empatprovinsi-raih-penghargaan-pelopor-provinsi-layak-anak>. media indonesia. “perda perlindungan anak masih minim”, (29 december 2017), online: <https://mediaindonesia.com/read/detail/138381perda-perlindungan-anak-masih-minim>. okezone. “hari anak nasional: ironis! belum ada kabupaten & kota layak anak di indonesia : okezone lifestyle”, (23 july 2017), online: <https://lifestyle.okezone.com/read/2017/07/23/196/174 2182/hari-anak-nasional-ironis-belum-ada-kabupaten-kotalayak-anak-di-indonesia>. paulus hadisuprapto. juvenile delinquency: pemahaman dan penanggulangannya (bandung: citra aditya bhakti, 1997). possore. “kota layak anak, mari belajar pada surabaya aktual dan kasual”, online: <http://possore.com/2017/01/05/kota-layakanak-mari-belajar-pada-surabaya/>. radar surabaya. “miris! kekerasan terhadap anak terus terjadi”, online: <https://radarsurabaya.jawapos.com/read/2018/03/04/54153/mir is-kekerasan-terhadap-anak-di-surabaya-terus-terjadi>. 179 | indonesian journal of law and society republika. “belum ada kota/kabupaten layak anak | republika online”, online: <https://nasional.republika.co.id/berita/nasional/umum/ 17/10/19/oy1e0n335-belum-ada-kotakabupaten-layak-anak>. republika. “40 kota di indonesia menuju kota layak anak | republika online”, online: <https://nasional.republika.co.id/berita/nasional/ umum/17/07/13/ot197m-40-kota-di-indonesia-menuju-kotalayak-anak>. republika. “laporan kekerasan anak di daerah meningkat | republika online”, online: <https://www.republika.co.id/berita/koran/ halaman-1/16/11/21/ogzcs315-laporan-kekerasan-anak-didaerah-meningkat>. simon nahak. hukum pajak perpajakan : konsep penal policy tindak pidana perpajakan dalam perspektif pembaharuan hukum (malang: setara press, 2014). surakarta government. “pbb pun acungi jempol program anak di surakarta”, (28 february 2017), online: pemerintah kota surak <https://surakarta.go.id/?p=4340>. surakarta government. “surakarta kota layak anak”, (24 july 2017), online: pemerintah kota surak <https://surakarta.go.id/?p=6471>. surakarta government. “surakarta miliki pusat layanan anak terintegrasi – pemerintah kota surakarta”, online: <http://surakarta.go.id/?p= 4112>. tribunnews. “dprd minta perda perlindungan anak segera diperbaharui surya”, online: <https://surabaya.tribunnews.com/2018/01/26/ dprd-minta-perda-perlindungan-anak-segera-diperbaharui>. tribunnews. “permasalahan yang dihadapi anak dan perempuan sepanjang 2017 dalam catatan kowani halaman 1 tribunnews.com”, online: <https://www.tribunnews.com/ nasional/2017/12/29/permasalahan-yang-dihadapi-anak-danperempuan-sepanjang-2017-dalam-catatan-kowani?page=1>. 180 | child-friendly cities and districts as human rights protection this page intentionally left blank microsoft word 18171-ijls.edited.docx indonesian journal of law and society (2020) 1:2 145-162 issn 2722-4074 | doi: 10.19184/ijls.v1i2.18171 published by the university of jember, indonesia available online 30 september 2020 * corresponding author’s e-mail: athpun@gmail.com comparing the contract between islamic and indonesian laws atharyanshah puneri* international islamic university malaysia, malaysia abstract. in the common transaction, the contract plays a crucial element made between the parties with their consent. its importance reflects that the contract realizes the parties' agreements and that contracts are binding the parties inside the agreements. this study aims to review the contract law by analyzing the law of contract from two different laws, which are islamic and indonesian laws. this study finds some similarities and differences between islamic and indonesian laws when they come to governing contracts. every contract in islamic law must comply with sharia aspects, and the law derived from the quran and hadith. meanwhile, based on indonesian law, a contract can be deemed legal when it complies with the requirements stated in article 1320 of the indonesian civil code, and every contract in indonesian law comes and is derived from the indonesian civil code. keywords: contracts law, islamic law, indonesian law. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institution submitted: 15/06/2020 reviewed: 20/06/2020 revised: 29/09/2020 accepted: 30/09/2020 146 | comparing the contract between islamic and indonesia laws i. introduction in the common transaction, the contract plays a crucial element made between the parties with their consent. its importance reflects that the contract realizes the parties' agreements and that contracts are binding the parties inside the agreements. as a result, the contract will be binding to the parties inside the agreements. in other words, the contract becomes the rule of the game between all the parties. in a business, a contract is one of the vital importance of a business organization. most of their business performed by making contracts are with the customers, suppliers, or employees. a contract may be defined as an agreement, enforceable at law, between two or more persons to do or refrain from doing some act or acts; the parties must intend to create legal relations and must have given something or promised to give something of value as a consideration in return for any benefit derived from the agreement.1 charles l. knapp and nathan m. crystal defined the law of contract as our society's legal mechanism for protecting the expectations that arise from the making of agreements for the future exchange of various types of performance, such as the compliance of property (tangible and intangible), the performance of services, and the payment of money.2 the definition from charles l. knapp and nathan m. crystal defines the law of contract from the mechanical aspect of the law procedure point of view. this mechanism aims to protect the hopes that arise from agreeing to the parties, such as services' performance. in sum, the contract can be defined as an act of law, where one or more people are binding themselves or binding themselves to the other person to do something or to give something.3 moreover, there are rights and obligations for the parties to be fulfilled, which arise from the contract. no matter which law is being applied, the contract is still vital in legal transactions, even in islamic and indonesian law. because without a contract, every legal transaction can be considered an illegal act. this paper aims to review the contract matters by examining how islamic and 1 neil lucas, llb learning texts: law of contract (great britain: blackstone press limited, second edition, 1998) at 3. 2 charles l. knapp and nathan m. crystal, problems in contract law case and materials (new york: aspen legal and business publisher, 1993) at 4. 3 agus yudha hernoko, hukum perjanjian: asas proporsionalitas dalam kontrak komersial (jakarta: penerbit kencana, 2010) at 18. 147 | indonesian journal of law and society indonesian laws regulating the contract, the comparison between islamic and indonesian laws in terms of the law of contracts. ii. the law of contract in islamic law a. definition of contract in islamic law there are at least two terms on al-qur’an, which are related to the agreement, the first one is al-‘aqdu (akad), and the other is al-‘ahdu (promise). from the terminology point of view, akad means a bond or binding. it was said bond (al-rabth) because it affirms to gather two of the ropes' end and bind one end to another end so both of them can be united and become like a complete rope.4 the word al-‘aqdu is being mentioned in surah al-maidah: verse (1), which stated, “o you who have faith! keep your agreements…”.5 from the translation, we can get an explanation that humans (especially for those who have faith) are being asked to fulfill their akad.” meanwhile, for the word al-‘ahdu, it is stated on surah ali imran verse (76), which is outlined, “yes, whoever fulfills his commitments and is wary of allah —allah indeed loves the godwary.”6 from the translation, we can get the explanation from that verse is allah is like people who are keeping their promise and being devoted. all of the jumhur ulama or the islamic law scholar defined akad as: “connection between ijab and qabul which can be accepted by syara’ and it caused legal consequences to the object."7 abdoerraoef said that a contract is happening through three stages. first, al‘ahdu (promise), which is a statement from someone to do or not to do something and have no connection with someone else's will. this promise is binding to someone who is stated that he or she will fulfill their promise.8 second, consent, which is the statement from the second party to do or not to do something 4 ghufron a. mas’adi, fiqih muamalah kontekstual (jakarta: raja grafindo persada, first edition, 2002) at 75. 5 the quran, surah al-maidah verse 1, with the translation from http://alquran.info/#3. 6 ibid, surah ali-imran verse 76. 7 ghufron a. mas’adi, supra note 4 at 76. 8 abdoerraoef, al-qur’an dan ilmu hukum: a comparative study (jakarta: bulan bintang, 1970) at 122-123. 148 | comparing the contract between islamic and indonesia laws as a reaction to the promise that was being stated by the first party.9 those consents must be according to the promise from the first party. third, if both parties are already run two promises, then something called 'akdu’ from surah al-maidah is being happen.10 b. elements of the contract from akad's definition, which is described earlier, we can understand three elements in akad. first, binding between ijab and qabul. ijab is the statement of will from one party (mujib) to do or not to do something. qabul is the statement from the second party (qaabil) to accept or approve mujib’s will. 11 second, it can be accepted by syara’. the akad which are being conducted cannot be against the things arranged by allah swt in al-qur'an and cannot be against the things that are being arranged by prophet muhammad saw in hadits. the implementation, goals, even the object of the akad cannot be against the syara’. if the akad is against the syara’, then that akad is invalid. 12 third, having legal consequences for the object. akad is one of the legal actions, or it was called tasharruf in islamic law terms. the existence of an akad causes legal consequences to the legal objects promised by the parties and gives some rights and obligations that bind all the parties.13 c. the source of the law of contract in islamic law as a part of islamic law, the law of contract in islamic law is the same as islamic law sources. islamic law originated from three sources, consisting of the quran, hadith, and ijtihad.14 first, the quran becomes one of the primary sources of islamic law. most of the law inside the quran only regulating the general rules. second, hadith is the second primary source of islamic law. hadith can be defined as one of the various reports describing the words, actions, or habits of the islamic prophet muhammad. in a hadith, the law of muamalat is more detailed if we compare it with the law in the quran but still regulating the general rules. third, ijtihad. in 9 ibid. 10 ibid. 11 ghufron a. mas’adi, supra note 4 at 76-77. 12 ibid. 13 ibid. 14 gemala dewi, et. al., hukum perikatan islam di indonesia (jakarta: prenada media group, 4th edition, 2013, at 39-46. 149 | indonesian journal of law and society english, the word ijtihad can be translated as an attempt to drive the quran's legal ruling.15 ijtihad must be done using ar-ra’yu or human minds. mohammad daud ali defined ijtihad as trullu effort or ikhtiar, which uses all of someone's (usually a legal scholar) capabilities that pass all of the requirements to regulating rules which are not being regulated clearly or not being regulated yet in holy quran or hadith.16 an example of ijtihad is in indonesia. since april 2000, a new body emerge called dewan syariah nasional (dsn) as a part of majelis ulama indonesia (mui). this body has the responsibility of making a fatwa17 which are related to the activities of the islamic financial institution in indonesia. so, all the fatwa made by the dsn in indonesia can be called the results from ijtihad. d. the principle of the contract in islamic law fathurrahman djamil said that at least five principles are known for a contract in islamic law. first, al-huriyyah (freedom). this is the basic principle for contract in islamic law, which means that everyone has the freedom to make a contract or akad. there cannot be an element of force, mistakes, and scam in a contract.18 second, al-musawah (equality). this principle means that all the parties have the same position to determine the terms and conditions of an akad.19 third, al-‘adalah (justice). implementation of this principle in a contract requires all the parties to straightforward implementing the contract. they must also fulfill their obligation in the contract.20 fourth, al-ridha (willingness). this principle stated that all the made transactions must be based on all the parties' willingness.21 fifth, as-sidq (honesty)22. this principle means that a contract or an akad must be made based on all the parties' honesty and avoid what the islamic law calls a gharar or scam. 15 collins dictionary, online: <https://www.collinsdictionary.com/dictionary/english/ijtihad>. 16 m. ali hasan, berbagai macam transaksi dalam islam (fiqh muamalat) (jakarta: rajagrafindo persada, 1st edition, 2003) at 145. 17 oxford dictionaries, online: < https://en.oxforddictionaries.com/definition/fatwa, the word fatwa means a ruling on the point of islamic law given by a recognized authority>. 18 h. arso, kumpulan makalah ekonomi syari’ah, (jakarta: direktorat jenderal badan peradilan agama mahkamah agung republik indonesia, 2007), 10. 19 ibid. 20 ibid. 21 h. arso, supra note 18 at 11. 22 ibid. 150 | comparing the contract between islamic and indonesia laws e. legal requirements of a contract in islamic law there are three legal requirements of a contract in islamic law, which consist of two or more parties who are conducting the contract or akad (the subject of the contract). two or more parties here are two people or more who are directly involving in the contract. both parties must pass all the requirements to be considered having the capacity to make their contract legitimate in the eye of islamic law. some of the requirements to be considered to make a contract are: (i) the ability to differentiate which one is bad and which one is a good thing. it means that the person already has their minds works and already akil baligh (or passing the puberty); (ii) free to choice. a contract will not be legitimate if that contract is being made under force if that force can be proven; and (iii) contract can be considered if there are no khiyar like khiyar syarath or khiyar ar-ru’yah. the object of the contract. it means that the things made as an object inside the contract can be the things sold in the selling-and-buying contract, or it can be the things that are being rented in a rent contract. there are some requirements for the contract's object, consisting of (i) the object of the contract must be in a holy condition, or if the object is in a profane condition, that things must be cleaned. so, we can make a proven object, such as a dead body, as our contract object; (ii) the contract's object must be useful and according to sharia. because the legal function of that object will be based on measuring that object; (iii) the object of the contract must be available to hand over. the contract will not be legitimate if the contract's object cannot be handed over to the other party because that can be categorized as gharar; (iv) the party in the contract must have the (legitimate) ownership of the object of the contract; and (v) all the parties must know the form of the object of the contract. the statement of the akad or contract (shighat). it can be defined as the contract's statement in the contract to shows their willingness to the contract. it was known as ijab and qabul. ijab is the statement of will from one party (mujib) to do or not to do something. qabul is the statement from the second party (qaabil) to accept or approve mujib’s will. the requirements of ijab and qabul are at least ijab, and qabul must be stated by someone who is reaching tamyiz who are realizing and knowing what they said so they could declare their willingness. in other words, it should be done by someone who is having the capacity to take legal action. ijab and qabul must be fixed to the object that becomes the object of the contract. ijab and qabul must be done in one place where all the parties are 151 | indonesian journal of law and society attending. shighat al-aqad is the way that the statement or agreement is being made. for example, it can be written or orally. al-ma'qud alaih / mahal al'aqad or the object of the contract. the object of the contract will be so much, depending on the contract that will be made. for example, in a contract of selling-and-buying, the object is usually goods and services. al-muta'aqidain/al'-awidain or the parties who are involved in the contract. all the parties must be having the capacity to make a legal action, or in other words, the parties must be old enough (mature enough) and have a healthy mental and mind to make a contract. maudhu’ al’aqd or the aim or goal of the contract must be according to the sharia’ or otherwise that contract cannot be legitimate. iii. contract law in indonesian law a. definition of contract in indonesian law in indonesian law, the contract law is regulated under the kitab undangundang hukum perdata (kuhper or indonesian civil code). kuhper is the adaptation from dutch’s old civil code or called burgerlijk wetboek (bw). kuhper or bw is divided into four categories, which are buku i: perihal orang (book i: about individual), buku ii: perihal benda (book ii: about property), buku iii: perihal perikatan (book iii: about obligation), and buku iv: perihal pembuktian dan daluarsa (book iv: concerning evidence and prescription). from the categories mentioned above, the law of the contract is being regulated in book iii. according the article 1313 of the indonesian civil code or kuhper23 defined contract or engagement as an act according to which one or more individuals bind themselves to one another. meanwhile, subekti, one of the law scholars from indonesia, defined contract or engagement as an event where someone is promising to another person who promises to do something.24 another law scholar, krmt tirtodiningrat, defined contract and engagement as an act of law based on an agreement between two or more people to cause legal consequences, which can be enforced by law.25 23 gufron a. mas’adi, supra note 7. 24 subekti, hukum perjanjian (jakarta: intermasa, 16th edition, 1996) at 1. 25 a. qirom meliala, pokok-pokok hukum perikatan beserta perkembangannya (yogyakarta: liberty, 1985) at 8. 152 | comparing the contract between islamic and indonesia laws many of indonesia's legal scholars think that the definition of contract on article 1313 of the indonesian civil code is not complete or cannot describe a contract in detail. one of the scholars that agree with this is suryodiningrat. he thinks that article 1313 of the indonesian civil code is not enough to describe the contract because26law has nothing to do with every engagement. the word "act" can be interpreted in so many ways, causing legal consequences without even being mentioned. the definition from article 1313 is only about the unilateral agreement, only one party that must do or give something, and article 1313 of the indonesian civil code is only about obligatoir agreement and cannot be used for other types of agreements. scholars like setiawan think that article 1313 of bw not only not complete but also too comprehensive to interpret. not enough because it only mentioned the unilateral agreement. moreover, it is too vast to interpret because using the word "act" also contains acts against the law and voluntary representation. according to that, he recommends27 the word "act" must be defined as an act of law, which aims to result in legal consequences; adding the words “or to binding each of themselves” to the article 1313 of bw. thus, the article should be written as "engagement is an act of law, where one or more individuals bind or binding themselves to one individual or more. nowadays, in netherland, they already made changes in their old bw in the form of nieuw burgerlijk wetboek (or nbw). so article 1313 of bw also has some changes regulated in book 6, chapter 5, article 6:213 that outlines, "a contract in the sense of this title is a multilateral juridical act whereby one or more parties assume an obligation towards one or more parties.”28 based on that nbw perspective, arthur s. hartkamp and marianne m. m. tillema assumed that contract is one of the species from the act of law genus. generally, they have defined a contract as "a juridical act, established – in compliance with possible formalities, required by the law – by the corresponding and mutually interdependent expressions of the intent of two or more parties, directed at the creation of juridical effects for 26 r. m. suryodiningrat, asas-asas hukum perikatan (bandung: tarsito, 1985) at 7274. 27 setiawan, pokok-pokok hukum perikatan, (jakarta: bina cipta, 1987) at 49. 28 p.p.c. haanapel & ejan mackaay, nieuw nederlands burgerlijk wetboek (het vermorgensrecht) (netherlands: kluwer law and taxation publisher, 1990) at 325. 153 | indonesian journal of law and society the benefit of one of the parties and to the account of the other party, or for the benefit and to the account of both parties."29 even though the bw origin already has some changes in the old bw in the netherlands, there are still no old bw changes in indonesia. that means indonesia is still using the old civil code with all of its shortcomings, especially the shortcomings in contracts law. b. the principle of the contract in indonesian law many arguments deal with indonesia's contract law. the main principle of the law of contract in indonesian law can be outlined as follows—first, consensualism. consensulism is often defined as that consent (between the parties) is needed to make an agreement/contract. it means that if there is an agreement that reaches between the parties. thus, the contract is born, even though that contract is not yet started at that time 30 in bw, this principle is mentioned in article 1320 (1), states, “there must be the consent of the individuals who are bound thereby.” second, freedom of contract. in bw, this principle is mentioned in article 1338 (1) of the indonesian civil code:31 “all valid agreements apply to the individuals who have concluded them as law.” this principle provides the parties' freedom 32 whether the parties are making or not making the contract; making a contract with anyone; deciding the content, the execution, and the terms of the contract; and deciding the form of the contract, whether written or orally. third, pacta sunt servanda (the binding power of the contract). the contract's binding power appears along with the freedom of contract principle, which manifests the patterns of human relationships that are showing the value of trust inside. substantially, it turns out the contract's binding power binding the parties for the things that are expressly stated inside the contract and for everything required by the custom, norms, or law.33 in bw, this principle is mentioned in articles 1315 and 1340 of the 29 arthur s. hartkamp and marianne m. m. tillema, contract law in the netherlands, (netherlands: kluwer law international, 1995) at 12. 30 ahmadi miru, hukum kontrak & perancangan kontrak ( jakarta: pt raja grafindo, 2007) at 3. 31 ibid., article 1338 paragraph (1). 32 salim h.s., hukum kontrak: teori & teknik penyusunan kontrak (jakarta: sinar grafika, 6th edition, 2009) at 9. 33 agus yudha hernoko, supra note 3 at 128. 154 | comparing the contract between islamic and indonesia laws indonesian civil code. article 1315 outlines:34 “in general, an individual may only commit to or agree to something for and on behalf of himself.” article 1340 said:35 "an agreement applies only to the parties to it." both articles 1315 and 1340 above show that the contract's binding power is only reaching the parties that are agreed upon. thus, this principle focuses on "who is being bound by the contract," not "what is the content of the contract36 good faith. in bw, this principle is mentioned in article 1338 (3):37 “they must be executed in good faith.” black’s law dictionary defined good faith as:38 "good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it compasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and individual's personal good faith is the concept of his mind and inner spirit and, therefore, may not conclusively be determined by his protestations alone. … in common usage, this term is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation." c. legal requirement of contract in indonesian law the legal requirement of the contract in indonesian law are regulated based on article 1320 of the indonesian civil code, which stated that in order to be valid, an agreement must satisfy the following four conditions: (i) there must be the consent of the individuals who are bound thereby, (ii) there must be the capacity to enter into an obligation, (iii) there must be a specific subject matter, and (iv) there must be a legal cause.39 the first and second requirements can be said as the subjective requirements or the parties' requirements in the contract. moreover, the third and fourth requirements can be said as the objective requirements or the requirements that regulate the contract's object. 34 burgerlijk wetboek, article 1315. 35 ibid, article 1340. 36 agus yudha hernoko, supra note 3 at 130. 37 burgerlijk wetboek, supra note 34 at article 1338 (3). 38 bryan a. garner, black’s law dictionary, (usa: west publishing co, 9th edition, 2009). 39 burgerlijk wetboek, supra note 34 at article 1320. 155 | indonesian journal of law and society if the contract parties cannot fulfill the first and second requirements, the contract can be canceled, or one of the parties can ask for the contract to cancel. nevertheless, the contract that is already being made still binds the parties as long as the judge did not cancel the contract.40 meanwhile, if the contract parties cannot fulfill the third and fourth requirements, the contract becomes void ab initio. it means that the contract is never be made, and there is no engagement between the parties since the beginning. so, the parties did not have the legal standing to make a sue in front of the court.41 first, consent. consent in a contract asserts willingness between the parties about the object mentioned in the contract. 42 consent can never be acclaimed if the contract was being made based on the scam, mistake, force, and misuse of the condition. second, capacity. capacity means the parties in the contract must be approved by law as a subject of law. everyone can make a contract. people who could not make a contract are people who are appointed by law.43 third, those who are not mature. in indonesian law, there is a difference in terms of "mature," which are in a condition where someone already passed all the requirement to be called "mature" by law and those who are "maturity" which they are not mature yet, but by the law, they can be announced as mature. based on the indonesian private law, someone is not mature when they do not yet reach 21 years old and yet to be married. for those who are yet to reach 21 years old, but they are already married and then already divorced, they cannot go back to the condition where they are called not mature.44 based on the indonesian criminal code, someone can be called mature if they already reach 21 years old or are already married before they reach 21 years old.45 adat law did not recognize any age for someone to be called mature. indonesian customary law only can recognize someone's maturity based on a case by case. capacity in indonesian customary law means that someone can calculate and protect their interests.46 40 frans satriyo wicaksono, panduan lengkap membuat surat-surat kontrak (jakarta: visimedia, 1st edition, 2008) at 7. 41 ibid at 8. 42 ibid. 43 ibid at 9. 44 burgerlijk wetboek, supra note 34 at article 330. 45 article 294 and 295 indonesian criminal code. 46 frans satriyo wicaksono, supra note 40 at 13. 156 | comparing the contract between islamic and indonesia laws fourth, those who are under guardianship. someone under guardianship means that someone cannot protect interests based on law assessment, so they need someone to be their guardian.47 under some specific elements mentioned in the law, women were banned from arranging the individual contract. a long time ago, women were considered not to have the capacity to take legal action. however, overtime, following the gender equality movement, the law has been withdrawn, and now women have the right and capacity to take legal action.48 fifth, specific subject matter. specific subject matter means that the object that is being ruled in the contract must be clear. this is very important to guarantee (or certainty) to all the parties and perform the contract. besides that, it also essential to prevent the emergence of fake contracts.49 these requirements are mentioned in article 1333 of the indonesian civil code, which states as follows: “an agreement must at least have as a subject a matter property whose nature is determined. the quantity of the matter needs not to be ascertained, insofar such quantity can be determined or calculated at a later date."50 sixth, permitted cause. permitted cause means that the agreement stated inside the contracts cannot be against the law, public order, and decency.51 these requirements are being mentioned in article 1336 of the indonesian civil code: "if no cause is specified but that there is an existing permissible cause, or if there is a permissible cause other than one specified, the agreement shall be valid."52 d. legal consequences of the contract the advent of a contract-based law encourages a further legal relationship between the parties in rights and obligations. the fulfillment of those rights and obligations is the legal consequences of the contract. those rights and obligations are the reciprocal relationships between the parties of 47 ibid at 14. 48 ibid at 15. 49 ibid at 17. 50 burgerlijk wetboek, supra note 34 at article 1333. 51 frans satriyo wicaksono, supra note 40 at 17. 52 burgerlijk wetboek, supra note 34 at article 1336. 157 | indonesian journal of law and society the contract. the obligations of the first party are the rights of the second party. vice versa, the obligations of the second part are the rights of the first party. in other words, the contract's legal consequences are the fulfillment of that contract itself by the parties.53 iv. comparing the contract in islamic and indonesian laws a. the process of making the contract according to gemala dewi, the contract's differences between islamic and indonesian laws deal with the engagement process. on islamic law, the first party's promise is separated from the promise from the second party (it is two different stages of engagement), and then after that, the engagement between the parties was made. meanwhile, in indonesian law, according to the burgerlijk wetboek, the promise between the first and second party is happens at the same stage, which later the engagement between those party was being made based on that promise. the most critical point that differentiates a contract in islamic law from a contract in other law is ijab and qabul in every transaction or contract. when the parties' promise is being agreed upon and continue with ijab and qabul, then the ‘aqdu (or engagement) was made.54 b. legal requirements of the contract in islamic and indonesian laws 1. the subject of the contract there are differences between the requirements of the subject of the contract if we see from islamic and indonesian laws. the differences are how islamic law and indonesian law define the 'capacity' of the contract subject. in islamic law, the age restriction for someone to be recognized as having the 'capacity' is based on ‘urf. nevertheless, in indonesian law, someone is recognized as having the capacity to reach 21 years old or already married before 21 years old. besides those differences, both islamic law and indonesian law obligate all the parties in the contract to have the 'capacity' to make the contract. 53 frans satriyo wicaksono, supra note 40 at 18-19. 54 gemala dewi, supra note 14 at 52-53. 158 | comparing the contract between islamic and indonesia laws 2. the statement of will both islamic law and indonesian law are obligating mutual consent between all the parties to make a contract. furthermore, based on that mutual consent, there must be a statement of will from both parties. in islamic law, this term is called ijab and qabul. generally, both islamic and indonesian laws have the same criteria if we are talking about the statement of will from both of the parties in the contract, but in islamic law, there are some additional requirements to make the statement of will becomes perfect. those additional requirements are: (i) both of ijab and qabul must be stated the aim of both parties clearly; (ii) both of ijab and qabul must be aligned to each other; and (iii) both of ijab and qabul must be muttashil (must be continuous), which must be done in the same place (or in one majlis ‘aqd). 3. the object of the contract basically, both islamic and indonesian laws have the same substance to regulate the object of the contract. however, in islamic law, the object of the contract cannot be against sharia. for example, in indonesia law, we are allowed to make a selling-buying contract in which the object of the contract is an alcoholic drink. nevertheless, in islamic law, we cannot make the same contract because alcohol is being prohibited by islamic law. instead, some requirements in islamic law regulating the contract's object can be handed over and can be determined and can be transacted. meanwhile, in indonesian law, the contract's object can be determined as the rights and obligations between the parties: to give something, to make something, and to not to do something. 4. the aim of the contract about the aim of the contract, in indonesian law, it was recognized as the permitted cause. permitted cause here means that the aim of the contract cannot be against the law, public order, and decency. meanwhile, in islamic law, the aim of the contract is recognized as maudhu’ al-‘aqd. it is one of the most important things that must be there in every contract. according to islamic law, the aim of the contract is al-musyarri’. in other words, every legal consequence made from the contract must be known by syara’ and cannot be against the syara,' or it must be followed all the rules in holy quran and hadith. 159 | indonesian journal of law and society table about the differences between the legal requirements of the contract in islamic and indonesian laws. no. variable islamic law indonesian law 1 subject the capacity of the parties is based on ‘urf the capacity of the parties is decided based on maturity or age. in buergelijk wetboek, someone is mature and have the capacity when they reach the age of 21 years old or they already been married before that age 2 statement of will according to ijab and qabul mutual consent or statement of the agreement 3 object a. can be handed over b. can be determined c. can be transacted a. to give something b. to make something c. to not do something 4 the aim of the contract every legal consequence made from the contract must be known by syara’ and cannot be against the syara,' or all the rules must follow it in the quran and hadith. the aim of the contract cannot be against the law, public order, and decency. c. comparing the principle of contract in islamic and indonesian laws the first main difference in the principle of a contract between islamic law and indonesian law is its origin. in islamic law, the law of contract comes from the quran and hadith. meanwhile, the law of contract in indonesian law comes from the indonesian civil code, which is the same as the dutch's burgerlijk wetboek (the old bw). 160 | comparing the contract between islamic and indonesia laws v. conclusion both islamic and indonesian laws have it is own set of requirements regarding the matters of contract. every islamic law contract must comply with every sharia aspect, and the law can be derived from al-quran and sunnah. meanwhile, based on indonesian law, a contract can be deemed legal when it complies with the requirements stated in article 1320 of the indonesian civil code, and every contract in indonesian law comes and is derived from the indonesian civil code. references abdoerraoef. al-qur’an dan ilmu hukum: a comparative study (jakarta:bulan bintang, 1970). arso, h. kumpulan makalah ekonomi syari’ah (jakarta: direktorat jenderal badan peradilan agama mahkamah agung republik indonesia, 2007). dewi, gemala, et. al.. hukum perikatan islam di indonesia (jakarta: prenada media group, fourth edition ed, 2013). garner, bryan a. black’s law dictionary (usa: west publishing co, ninth edition ed, 2009). h.s., salim. hukum kontrak: teori & teknik penyusunan kontrak (jakarta: sinar grafika, sixth edition ed, 2009). haanapel, p.p.c. and ejan mackaay. nieuw nederlands burgerlijk wetboek (het vermorgensrecht) (netherlands: kluwer law and taxation publisher, 1990). hadisoeprapto, hartono. seri hukum perdata: pokok-pokok hukum perikatan dan hukum jaminan (yogyakarta: penerbit liberty, first edition ed, 1984). hartkamp, arthur s. and marianne m. m. tillema. contract law in the netherlands (netherlands: kluwer law international, 1995). hasan, m. ali. berbagai macam transaksi dalam islam (fiqh muamalat) (jakarta: raja grafindo persada, first edition ed, 2003). hernoko, agus yudha. hukum perjanjian: asas proporsionalitas dalam kontrak komersial (jakarta: penerbit kencana, 2010). 161 | indonesian journal of law and society knapp, charles l., and nathan m. crystal. problems in contract law case and materials (new york: aspen legal and business publisher, 1993). lucas, neil. llb learning texts: law of contract (great britain: blackstone press limited, second edition ed, 1998). mas’adi, ghufron a. fiqih muamalah kontekstual (jakarta: rajagrafindo persada, first edition ed, 2002). meliala, a. qirom. pokok-pokok hukum perikatan beserta perkembangannya (yogyakarta: liberty, 1985). miru, ahmadi. hukum kontrak & perancangan kontrak (jakarta: pt raja grafindo, 2007). setiawan. pokok-pokok hukum perikatan (jakarta: bina cipta, 1987). subekti. hukum perjanjian (jakarta: intermasa, sixteenth edition ed, 1996). suryodiningrat, r. m. asas-asas hukum perikatan (bandung: tarsito, 1985). wicaksono, frans satriyo. panduan lengkap membuat surat-surat kontrak (jakarta: visimedia, first edition ed, 2008). 162 | comparing the contract between islamic and indonesia laws this page intentionally left blank microsoft word 19345.edited.docx indonesian journal of law and society (2020) 1:2 181-198 issn 2722-4074 | doi: 10.19184/ijls.v1i2.19345 published by the university of jember, indonesia available online 30 september 2020 * corresponding authors’ e-mail: happyagung23@gmail.com reformulating political party court procedures in parties' dispute settlement m happy agung saputra* university of jember, indonesia iwan rachmad soetijono university of jember, indonesia shofi munawwir efendi university of jember, indonesia abstract. the reformulation is a law enforcement stage by the legislature or a stage that is limited to the formulation of provisions regulated according to the current or future's condition. the political party court is an important institution in the law enforcement procedure with a mixed-functionnamely, regulator, administrator, and adjudicator – with a quasi-judicial. internal dispute settlement through the political party court was intended to ensure the parties' freedom and restrain the government interference that impacts the party's independence and their role as one of the institutions that have an essential duty to effectuate people's sovereignty. therefore, the urgency of reformulation of the party's court procedures based on the principles of justice and accountability can become an answer to the political party's disputes. the law can strictly regulate this dispute settlement. keywords: reformulation, political party court, dispute settlement, political party. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institution submitted: 21/08/2020 reviewed: 12/09/2020 revised: 20/09/2020 accepted: 25/09/2020 182 | reformulating political party court procedures in parties' dispute settlement i. introduction the actualization of welfare state should be supported by three stakes, namely the state, which is manifested by government, the laws, and the officials who enforce it.1 the laws are formed to tackle the crimes, so the formulation must be appropriate with the present or future's needs. the legislation process can be carried out through several stages that are needed by new regulation, one of them is the formulation. the formulation process is an initial strategic stage of law enforcement. mistakes or weaknesses in the formulation process can become obstacles to law enforcement.2 according to the legal theory as a method of legal practice, the legal theory was emphasized to the rule-making (legislation) and interpretation.3 an important instrument of political parties in a democracy lies in a particular role given to parties as institutions that carry the people's aspirations.4 the political parties distribute and relocate a socio-political power to the state's political superstructure level through the general elections. 5 the existence of political parties in indonesia coincided with developing the right to express the people's thoughts or ideas and the right to organize.6 in his book "political order in changing societies," huntington states that the development of democracy has increased people's political participation in the life of the nation and state.7 the most important political parties' instrument lies in their special role in distributing the people's aspirations and relocating the socio-political power to the election. consequently, the political parties must be works according to the 1945 constitution of the republic of indonesia, which contains the basic principle of democracy and the political system. 1 yohanes suhardin, "peranan hukum dalam mewujudkan kesejahteraan masyarakat" (2007) 25:3 jurnal hukum pro justitia, at. 270. 2 barda nawawi arief, masalah penegakan hukum dan kebijakan hukum pidana dalam penanggulangan kejahatan (jakarta: prenada media, 2018) at 25. 3 arief sidharta, meuwissen tentang pengembangan hukum, ilmu hukum, teori hukum, dan filsafat hukum (bandung: reflika aditama, 2007) at 29. 4 abdul manan, aspek-aspek pengubah hukum (jakarta: prenada media, 2018) at 109. 5 didik sukriono, “desain pengelolaan keuangan partai politik berbasis demokrasi menuju kemandirian partai politik” (2018) 3:1 jurnal ilmu pendidikan pancasila dan kewarganegaraan, at 38. 6 anwar rachman, hukum perselisihan partai politik (jakarta: gramedia pustaka utama, 2016) at. 83–84. 7 samuel p. huntington, tertib politik di tengah pergeseran kepentingan masa, terjemahan dari political order in changing societies (jakarta: raja grafindo persada, 2003) at 472. 183 | indonesian journal of law and society in operating the management of political parties, party administrators have trusted to determine the party's policies' direction. besides, in the running of a party, it cannot be denied that sometimes there are disputes among the party's administrator members. in the indonesian case, there was a conflict of internal management within a political party. a special case of the internal conflict of a political party occurred within the golkar (golongan karya) party in 2014, between agung laksono and aburizal bakrie political party court to resolve their conflict.8 juridically, political party management disputes have been regulated in law number 2 of 2011 on the amendment to law number 2 of 2008 on political parties, which specifically regulated in articles 32 and 37. according to this regulation, one of the rules is a settlement of political party disputes by providing empowerment and independence of the parties through the political party court that should have to be established by the political parties. unfortunately, the existence of the political party court has not been integratively regulated. it can be seen from the ambiguous and complicated norms in law number 2 of 2011, only regulating the party's disputes in article 2. the ambiguity was also proven by the absence of the procedural arrangements for political party disputes in the political party court. 9 in practice, the procedural law that has been used in examining cases of disputes over political parties is their methods in each political party. a case examined by the court should combine three things simultaneously: legal certainty, utility, and justice. thus, strengthening and institutionalizing the political party court will be based on these three points. it considers the political party court as an institution that will ensure and guard the political parties' sovereignty. 10 the urgency of structuring the political party court is aimed to provide legal protection, especially for every member of the political party as a citizen's right and their right as a party member.11 8 ade mulyawan, “konflik internal partai golkar pasca pemilihan umum 2014” (2014) uin syarif hidayatullah, at 9. 9 firdaus firdaus & nalom kurniawan, “kekuatan putusan mahkamah partai ditinjau dari sistem kekuasaan kehakiman menurut uud 1945” (2018) 14:3 jurnal konstitusi at 665. 10 fitria agustina, “kedudukan mahkamah partai politik dalam penyelesaian sengketa internal berdasarkan undang-undang nomor 2 tahun 2011” (2015) universitas jember, at 47. 11 charlyna s purba, “eksistensi mahkamah partai persatuan pembangunan (studi putusan mahkamah partai dewan pimpinan pusat partai persatuan pembangunan no. 49/pip/mp-dpp.ppp/2014)” (2020) 1:1 jurnal hukum media bhakti, online: <http://journal.fhupb.ac.id/index.php/jhmb/article/view/4> at 11. 184 | reformulating political party court procedures in parties' dispute settlement ii. the procedures of the political party court in the party dispute settlement a. the progress of the regulation of the political party court from a legal perspective, the progress in regulating the political party court can be traced by comparing the political party's law in the past and the successive year, starting with law number 2 of 1999 on political parties. this regulation does not contain how to resolve internal political party disputes. law number 2 of 1999 does not raise the issues of internal political party dispute settlement.12 the basic principles of the political party at that time still revolve around the matter of the requirements of party's establishment, party's principles, party's objectives, party's rights, party's finances, and party's suspension or dismissal. anyone who feels aggrieved by the political party's decision, this dispute will be submitted and examined by the district court. the legal basis used to accuse the cases of party dispute to the district court is article 1365 of the civil code of illegal acts committed by party officials against the members of political parties.13 law number 31 of 2002 on political parties came to replace the previous regulation (law number 2 of 1999). this law has started to introduce a dispute settlement of political parties. however, a brief and vague norm still regulates it. 14 article 16, chapter viii of the law number 31 of 2002 entitled the court of political party casesarranges that the cases of political parties relating to this law's provisions are filed and solved through the district court. the district court must settle the political party cases for a maximum of sixty days and by the supreme court for a maximum of thirty days. 15 however, the problem that arises is whether the political party case arranged by law number 31 of 2002 has included the scope of internal political party disputes. suppose it is traced according to the provisions of article 16 section (1) regarding the cases of the political party that can be settled by the district court. in that case, there is a phrase 'relating to this law.' this phrase means that the cases which can be processed to the district court include the offense of article 19 section (2) relating to the prohibition for political parties from carrying out certain activities; the offense of articles 18 and 19 section (3) related to the prohibition of donations to the political 12 agus satory et al, meneroka relasi hukum, negara, dan budaya (jakarta: yayasan pustaka obor indonesia, 2017) at 61. 13 anwar rachman, supra note 3 at 188. 14 satory et al, supra note 12 at 61. 15 ibid at 62. 185 | indonesian journal of law and society parties; as well as the offense of article 19 section (5) related to the prohibition for political parties from adhering, extending and spreading the communism, marxism, leninism. referring to the normative provisions of law number 31 of 2002, these circumstances which can be settled through the district court as regulated in this law are not included in an internal political party's disputes. the internal political party disputes are not regulated in this law. nevertheless, there is no prohibition against using the district court or alternative dispute settlement as long as it has been regulated in each party's statute. furthermore, there was also law number 2 of 2008 on political parties, which replaced all the previous law. the settlement of political party disputes is regulated in this law for the first time, which is arranged by article 32. this article explains that political party disputes can be resolved by confabulation and consensus methods. if the consensus cannot be reached, then the settlement of political party disputes can be pursued through litigation or non-litigation.16 the non-litigation dispute settlement that is solved from the outside of the court can be through by reconciliation, mediation, or arbitration by the political parties where the mechanisms are regulated in their statute.17 this law does not regulate the existence of a political party court, and there is no obligation for political parties to establish a political party court.18 in the development of the regulations regarding the political parties, law number 2 of 2011 as the newest regulation on political parties was the last amended law and is currently being used. the provisions regarding the regulation of party’s internal dispute in this law have significantly evolve compared to law number 2 of 2008. 19 this newest political party's law accommodates a political party court or other designation in resolving the internal party disputes. law number 2 of 2011 has mandates every political 16 rizky perdana maya, "kewenangan mahkamah partai sebagai lembaga penyelesaian perselisihan internal partai politik" (2016) universitas andalas, at 9. 17 agustina, supra note 10 at 43–45. 18 a a oka mahendra, “paradigma baru uu no. 2 tahun 2008 tentang partai politik” (2018) 5:1 jurnal legislasi indonesia 81–89. 19 satory et al, supra note 12 at 66. 186 | reformulating political party court procedures in parties' dispute settlement party to establish a political party court. however, the political party court has not clearly defined by this law. 20 as the party's internal disputes, which regulated in article 32 section (2), states, to strengthen the implementation of democracy and an effective party's system according to the state constitution, it is necessary to strengthen the institutions and to increase the function and role of the political parties.21 the adjustment of political party dispute settlement is listed in articles 32 and 33 to regulate the patterns of acceleration of the dispute settlement and obligate the political parties to establish a political party court. this obligation will make the political party court replace the district court's authority, which has the authority to adjudicate the internal disputes of the political parties.22 b. party's court in the party’s statute the political party court's function in resolving internal conflicts of political parties is regulated in law number 2 of 2011 on amendments to law number 2 of 2008 on political parties, which is arranged by article 32 and article 33. the establishment of this party's court is expected to encourage political parties' independence by settling their internal disputes without interference from the government or judicial institutions. this provision is appropriate with article 12 letter (b) of the political party law, which states that the political parties have the right to regulate and manage their organizational households independently. political parties' independence and obligation are resolving their internal disputes by establishing their professional and independent courts. this mechanism will construct the good, effective, strong, independent, professional, and functional parties as a result.23 20 kristo roland pattiapon, “eksistensi mahkamah partai politik dalam menyelesaikan perselisihan internal partai politik” (2020) 5:1 jurnal ilmu pendidikan pancasila dan kewarganegaraan 85–94 at 91. 21 ik ghoniyyah, "peran dan fungsi mahkamah partai dalam menyelesaikan konflik internal partai menurut undang-undang no. 2 tahun 2011 tentang partai politik" (2016) universitas islam negeri sunan ampel surabaya at 50. 22 ali mahbub, "problematika status putusan mahkamah partai politik dalam penyelesaian sengketa partai politik: studi atas politik hukum pasal 32 dan pasal 33 undang-undang nomor 2 tahun 2011 tentang partai politik" (2018) universitas islam indonesia, at 66. 23 agustina, supra note 10 at 54. 187 | indonesian journal of law and society c. the procedures of the political party court in the political party court procedure in internal dispute settlement, the existence of this party courts that already has court proceedings within the party's internal dispute is only two parties, namely the golkar party and the partai persatuan pembangunan (the development union party). both if these parties already have special rules in the party organization regulations regarding the party court procedures. 24 the procedure for the political party court in the golkar party includes the petitioners. in this court, the petitioner is the people who accuse or an individual who perceive to be aggrieved by the party's policy. this provision can be seen in article 2 section (1) of the golkar’s statute. the other side of the party’s dispute is the defendant who officially posts as party leaders on the local or national stage. the golkar’s court procedures are. first, the petitioner submits the petition for internal disputes to the golkar party, referred to in article 2 section (1). regarding the petition, based on article 6 section (1) and section (2) of the golkar party organizational regulation states that relating to the management disputes, abuse of management authority, financial accountability, and the exception of the party’s decisions must be submitted within a maximum of 14 (fourteen) weekday since the party’s decision by the dpp golkar party/ dpd has issued, or since the petitioner receives this decree accompanied by a receipt as proof. the petition, which is related to violations of the party members' rights, and the dismissal of party members/party functionary without any apparent reason, can be submitted within a maximum period of 90 (ninety) days since the dispute has occurred. the petitioner's application must conform to several matters as stipulated in article 7 section (1) and (2). article 7 sections (1) and (2) explain that the petition must at least contain the identity (name, address, telephone number (office, house, cellphone), facsimile number, and/or e-mail), the authority of the party court, the legal standing of the petitioner, and the deadline for submitting the application. besides, the petitioner is obliged to provide a clear description of the petition regarding the chronology of the occurrence and the reasons and the requisition. the petition requested must be equipped with the piece of evidence that promotes the petition. article 7 section (3) states that the evidence referred to in section (2) are letters or documents. in this condition, the petitioner must submit 10 (ten) copies of evidence that 24 tri cahya indra permana, “model penyelesaian perselisihan partai politik secara internal maupun eksternal” (2016) 5:1 jurnal hukum dan peradilan, at 39. 188 | reformulating political party court procedures in parties' dispute settlement one copy must be stamped with the seal. the other (nine copies) are the multiplication of the evidence. second, the registration and trial schedule. the provisions of the political party court in registration and the trial are explained in article 10 of the golkar party organization regulation. this article states that applications received will be recorded by the registrar in the case registration book (brp). further, the secretariat of the party court will send a copy of the petition that has been recorded in the brp to the defendant, accompanied by request for a written response or exception from the defendant and the first trial scheduled for the petitioner and the defendant within three weekday. the written answer made by the defendant shall at least contain the name and address, office telephone number, facsimile number, electronic mail (e-mail), a clear argument of the rebuttal, the chronology of the imposition of sanctions for the petitioner, publishing the decisions, the infringement of the decision, disputes and/or presumption of abuse of the authority along with the reasons. when the defendant's answer or exception has been received by the registrar's office no later than a weekday before the trial day, the next process is the plenary trial of the party court, which is conducted to hear the petitioner's explanation, defendant's response. the parties' evidence, followed by the third party's statements (optional), conclusion, and the final process is the decision. for evidentiary, the party court can initiate an adjudication process through a virtual trial (video conference) and/or other communication media such as facsimile and electronic mail (e-mail). there are still weaknesses in the procedures of the golkar party political court. in the case of judges' selection, there are still no requirements and an ideal term for presiding over the trial, which is very important to avoid intervention from others. there is no legal form and specific rules regarding the procedures for the political party court. therefore, it requires creating an ideal concept of a political party court – for all partiesor the reformation of the party court's procedures in internal dispute settlement for the fluency and accountability of this court. 189 | indonesian journal of law and society iii. reform of court procedures in the party dispute settlement system a. the legal concept the standing of the political party courts is still relatively weak, either from the perspective of regulation, instruments, and litigation processes25. the political party court's procedural arrangements in indonesia need to be organized and improved through the regulation to create a democratic political system and raise an effective presidential system. 26 one of the main elements that need to be more comprehensively regulated is the restructuration of the party's court in the political party law by giving more independence to the political parties related to their internal disputes and assigning a procedural rule for the political party court. 27 the political party court must have functioned as an institution that performs "pro-justicia" actions and law enforcement in general terms and the necessity for resolving internal party disputes. the establishment of the political party court aims to accelerate the settlement of internal party's disputes. b. the judges in the judges' recruitment process at the political party court, the party's leader elects and appoints the judges from their members. in order to be appointed as a judge and a member of the panel of judges, people should fulfill the following requirements: 28 a. indonesian nationality; b. believe in god almighty; c. faithfull to the pancasila and the 1945 constitution; d. have an education of at least a bachelor degree (s1), specifically bachelor of laws; e. be at least 40 (forty) years old; f. physically and mentally healthy; g. be prestigious, truthful, fair, and undespicable behavior; and h. experienced as a party member and/or committee for a minimum of 10 years. 25 firdaus & kurniawan, supra note 9 at 660. 26 anwar rachman, supra note 3 at 40. 27 ibid at 41. 28 ibid at 356. 190 | reformulating political party court procedures in parties' dispute settlement the party court judge is obliged to take an oath or pledge before taking the position. for these eight requirements, most of them have included the administrative requirements, which mean they can sufficiently be fulfilled by showing the evidence of administrative documents. the technical requirements that were measured are professionality, such as skills in conducting legal analysis and arguments. it is also necessary to have qualitative requirements such as belief in god almighty, integrity, dignity, honesty, fairness, and undespicable behavior. both of these personal and professional requirements need to be more detailed in regulation to ensure the judges' integrity to occupy this honorable position.29 c. the authorities of the court the types of the disputes which can be requested for examined to the political party court according to the law are the disputes relating to the party’s management; violation of the rights of party members; dismissal or suspension of the management without clear reasons; abuse of power; dismissal of the dpr members from political parties; and an exception of the decision issued by the higher stewardship.30 regarding the petition, the petitioners originated from each party –which is proven by a party member card issued by the legal management and/or party's councils in any levelswho feel disadvantaged by some previous disputes. the defendant is the party governing council, which issues a decision relating to the defendant who is petitioned to be recalled or filed into the dispute. the members or party governing council who feel the party's decision has aggrieved their interests may submit a written lawsuit to the party court containing the demand for this decision to be canceled and unlawful declared, with or without demands for rehabilitation. the reasons that can be used to this petition are the party's decision contradicts the prevailing regulations and party's statutes; contradicts with the principles of legal certainty, administrative order, transparency, proportionality, professionality, accountability; and other management-related matters, whether in the case of dismissal or suspension without clarity, abuse of authority, financial accountability, and exception to the decisions issued by superiors. 31 29 ibid. 30 firdaus & kurniawan, supra note 9 at 657. 31 anwar usman, supra note 6 at 356. 191 | indonesian journal of law and society in submitting the petition, the petitioner must be a person or entity with a direct interest in the party dispute. the procedures for submitting the petition are: 1. the petition must be submitted in written indonesian language by petitioner to the party court; 2. the petition must be signed by the petitioner and made in 6 (six) copies; 3. the application contains at least: a. complete identity of the petitioner; b. a clear and detailed description of the types of violations by the management and the decision letter petitioned for annulment, which is deemed contrary to the party law, statutes/articles of association, and party regulations; c. evidence supporting the petition; and d. request or demand to withdraw the party's decision letter. 4. this petition for annulment of a party decision may be submitted not later than 60 (six) days counted from the date of the decision and/or the notification of the decision concerned; 5. the petition submitted after passing the date as intended in section (4) cannot be registered in the party’s court. subsequently, the political party court will determine the first trial scheduled in a maximum of seven weekdays after the petition was recorded in the party court case registration book (brp). the parties will announce the first trial to the parties and the public by an official website.32 d. the trials the examination of the petition shall be carried out in an opened trial, attended by at least 3 (three) members of the judges. the first trial is the preliminary examination to verify the file completeness, identity of the parties, and the petition's clarity. at the first trial, the panel of judges advised the petitioner to complete or revise the petition if deemed necessary in a maximum of seven days. before the trial started, the chief and/or the judges' members must attempt to reconcile the disputing parties.33 if the reconciliation can be achieved, it can be stated in the judges' decision, and the parties are required to obey this decision. in the trial, the parties are 32 ibid at 367. 33 ibid at 255. 192 | reformulating political party court procedures in parties' dispute settlement given the same opportunity to convey their arguments and/or abutment, either verbally or in writing, equipped with the evidence which consists of statements from the parties; letters or documents; witness statement; expert testimony; clues; other evidence such as electronic information; and letters or documents which has submitted as evidence in the trial.34 furthermore, the assembly consultative meeting (rpm) was held to decide after the judges' trial examination was deemed sufficient. this rpm must be carried out in a private meeting by the plenary of the judges, which are attended by a minimum of 3 (three) judges. the deliberation process holds decision-making in the rpm to achieve a consensus. if the consensus has not been achieved, a decision will be made on the majority votes. if a majority vote cannot reach a decision, the final vote will be determined by the chief of the judges of rpm. e. the decision the execution or implementation of the decision has legally binding authority. it can be enforced for the losing party (the defendant) if the decision was disobeyed. in principle, only a legally binding decision (inkracht van gewijsde) can be enforced. the decisions which can be executed are decisions that have obtained permanent legal force (inkracht van gewijsde), which contains an intent of a fixed and definite legal relationship between the parties in this case. when this legal relationship between the parties has been fixed, it must be obeyed and fulfilled by the convicted party (the defendant). the decision of the political party court applies to the internal party concerned. the parties must obey the party's decisions relating to the 4 (four) cases related to political party management. the kpu considers the party court's decision to determine the right to nominate candidates for president, governor, or regent and is also used by the police to safekeeping the political parties' building or events.35 the party court's decision is adopted by the ministry of home affairs, provincial governments, and city's governments to disburse the party's aid funds and used by the minister of law and human rights to ratify the management of political parties.36 34 ibid. 35 ibid at 366–367. 36 m anwar rachman, “penyelesaian perselisihan internal partai politik” (2017) 31:2 yuridika 189 at 203. 193 | indonesian journal of law and society decisions of the party court relating to dismissal of political party members are used by the president, kpu, and the chief of the dpr to process the appeal of interim replacement (paw) for dpr members, governors, or regents; and also used by kpu to process recall's applications for dprd members.37 the decision of the party court is regulated in article 33 section (1). this article explains that when the dispute settlement cannot be reached, the district court can hold the dispute settlement. 38 however, this is contrary to its absolute authority39because the political parties court decisions tend to be administrative, while the district courts are not authorized to examine an administrative case. administrative cases fall under the state administrative court's authority, and the district courts should not have the right to interfere because they did not have the authority. the legal remedy concept is unclear, whether it is a new lawsuit, appeal, or resistance (verset), and whether the party court can be withdrawn as a party or not. 40 the party court's decision prevails to internal political parties. it prevails to external political parties and the parties which related the disputes.41 e. trial's procedures the trial stages in the political party court should adopt the stages from the state administrative court. the absolute authority of the party court, which has the right to decide matters of party management, is an administrative matter because it is related to the decrees of the central executive council (dpp) or the regional executive council (dpd) and the branch executive council which put on trial. if the district court settled these disputes, it would be contrasted to absolute authority. the district court was not authorized to adjudicate an administrative case. the party dispute case is an internal decree related to party management issues. this character can be the reasoning that the party courtin conducting internal party dispute settlement procedurescan adopt the state administrative court's procedures because they have the same absolute authority. 37 anwar usman, supra note 6 at 366–367. see also jayus, muhammad bahrul ulum & moch marsa taufiqurrohman, “examining recall of the house member: how does it impact on eradicating corruption in indonesia?” (2020) 7:1 lentera huk 101–116. 38 pattiapon, supra note 20 at 88. 39 rachman, supra note 36 at 198. 40 anwar usman, supra note 6 at 568. 41 ibid at 367. 194 | reformulating political party court procedures in parties' dispute settlement accordingly, the political party court can undertake the trials with the principles of justice and accountability without interference from other parties.42 v. conclusion the reform of the political party court proceedings in internal political party disputes -as a legal arrangement for the settlement of political party dispute cases as regulated in law no. 2 of 2011 on political partieshas not applied simple, fast, and low-cost judicial principles. courts must be under the principles of simple, fast, and low-cost trials. however, this principle has not been adopted in the party dispute settlement. the lack of this principle in the party court can be seen in the party court decision, which should tend to final and binding. the party court decision was still possibly appealed to the district court and the supreme court as a final legal effort. 43 these procedures are still complicated, inefficient, high-priced, and there is no legal certainty and justice for litigation parties. instead, it can create the dispute settlement's dualism between the district court and the state administrative court.44 relating with the political party court procedures in settlement of internal political party disputes, it is required to comply with the statutes according to law number 2 of 2011 on political parties. article 32 section (1) of the political party law states that one of the political party court authorities is to adjudicate the political party disputes as regulated in the statutes.45 the party organization regulations recently still limited regulating the party court's dispute settlement, regulated in party statute. however, practically, there are no advanced procedures for their party's court. reformulation is rearranging the rules that have been established so that they can be suitable with the law. therefore, the proceedings of the political party court, along with other provisions, must be immediately amended for the internal political party's fluency. the arrangements for solving the political party disputes in the political party law must be immediately repealed and 42 pattiapon, supra note 20 at 91. 43 firdaus & kurniawan, supra note 9 at 669. 44 permana, supra note 24 at 38. 45 pattiapon, supra note 20 at 90. 195 | indonesian journal of law and society replaced with a new comprehensive law that provides legal certainty for litigation parties. the propositions given by the author are, first, the urgency of regulating the internal dispute settlement through the political party court under the statute. second, the amendment of law number 2 of 2011 on political parties related to the additional obligation for each party to have a political party court, its procedures, and the independence of the political parties related to dispute resolution must be strengthened. then, the legal form as a fundamental part of the law-making process must be immediately improved to unleash the parties' internal management and other provisions, namely the panel of judges, the petitioner's legal standing, the stages of the trial, and decision. references agustina, fitria. “kedudukan mahkamah partai politik dalam penyelesaian sengketa internal berdasarkan undang-undang nomor 2 tahun 2011” (universitas jember, 2015). ali, zainudin. metode penelitian hukum (jakarta: sinar grafika, 2011). arief, barda nawawi. masalah penegakan hukum dan kebijakan hukum pidana dalam penanggulangan kejahatan (jakarta: prenada media, 2018). budiarjo, miriam. pengantar politik (jakarta: gramedia, 2000). firdaus, firdaus & nalom kurniawan. “kekuatan putusan mahkamah partai ditinjau dari sistem kekuasaan kehakiman menurut uud 1945” (2018) 14:3 jurnal konstitusi. ghonniyyah, ik. " peran dan fungsi mahkamah partai dalam menyelesaikan konflik internal partai menurut undang-undang no. 2 tahun 2011 tentang partai politik" (universitas islam negeri sunan ampel surabaya, 2016). huntington, samuel p. tertib politik di tengah pergeseran kepentingan masa, terjemahan dari political order in changing societies (jakarta: raja grafindo persada, 2003). ibrahim, jhony. teori dan metode penelitian hukum normatif (malang: bayumedia publishing, 2006). 196 | reformulating political party court procedures in parties' dispute settlement mahbub, ali. ”problematika status putusan mahkamah partai politik dalam penyelesaian sengketa partai politik: studi atas politik hukum pasal 32 dan pasal 33 undang-undang nomor 2 tahun 2011 tentang partai politik" (universitas islam indonesia, 2018). mahendra, a a oka. “paradigma baru uu no. 2 tahun 2008 tentang partai politik” (2018) 5:1 jurnal legislasi indonesia. manan, abdul. aspek-aspek pengubah hukum (jakarta: prenada media, 2018). marzuki, peter mahmud. penelitian hukum (jakarta: kencana prenada group, 2010). maya, rizky perdana. "kewenangan mahkamah partai sebagai lembaga penyelesaian perselisihan internal partai politik" (universitas andalas, 2016). mulyawan, ade. “konflik internal partai golkar pasca pemilihan umum 2014” (uin syarif hidayatullah, 2014). pattiapon, kristo roland. “eksistensi mahkamah partai politik dalam menyelesaikan perselisihan internal partai politik” (2020) 5:1 jurnal ilmu pendidikan pancasila dan kewarganegaraan. huntington, samuel p, political order in changing societies (yale university press, 2006). maya, rizky perdana, kewenangan mahkamah partai sebagai lembaga penyelesaian perselisihan internal partai politik (diploma, universitas andalas, 2016). anwar rachma, sh, hukum perselisihan partai politik (gramedia pustaka utama, 2016). abdul manan, aspek-aspek pengubah hukum (prenada media, 2018). satory, agus et al, meneroka relasi hukum, negara, dan budaya (yayasan pustaka obor indonesia). barda nawawi arief, masalah penegakan hukum dan kebijakan hukum pidana dalam penanggulangan kejahatan (prenada media, 2018). sidharta;, arief, meuwissen tentang pengembanan hukum, ilmu hukum, teori hukum, dan filsafat hukum (reflika aditama, 2007). 197 | indonesian journal of law and society agustina, fitria, “kedudukan mahkamah partai politik dalam penyelesaian sengketa internal berdasarkan undang-undang nomor 2 tahun 2011” (2015), online: <http://repository.unej.ac.id/handle/123456789/67771>. firdaus, firdaus & nalom kurniawan, “kekuatan putusan mahkamah partai ditinjau dari sistem kekuasaan kehakiman menurut uud 1945” (2018) 14:3 j konstitusi 644–671. jayus, muhammad bahrul ulum & moch marsa taufiqurrohman, “examining recall of the house member: how does it impact on eradicating corruption in indonesia?” (2020) 7:1 lentera huk 101–116. mahendra, a a oka, “paradigma baru uu no. 2 tahun 2008 tentang partai politik” (2018) 5:1 j legis indones 81–89. mulyawan, ade, “konflik internal partai golkar pasca pemilihan umum 2014” (2014), online: <http://repository.uinjkt.ac.id/dspace/handle/123456789/39118>. pattiapon, kristo roland, “eksistensi mahkamah partai politik dalam menyelesaikan perselisihan internal partai politik” (2020) 5:1 j ilm pendidik pancasila dan kewarganegaraan 85–94. permana, tri cahya indra, “model penyelesaian perselisihan partai politik secara internal maupun eksternal” (2016) 5:1 j huk dan peradil 35–52. purba, charlyna s, “eksistensi mahkamah partai persatuan pembangunan (studi putusan mahkamah partai dewan pimpinan pusat partai persatuan pembangunan no. 49/pip/mp-dpp.ppp/2014)” (2020) 1:1 j huk media bhakti, online: <http://journal.fhupb.ac.id/index.php/jhmb/article/view/4>. rachman, m anwar, “penyelesaian perselisihan internal partai politik” (2017) 31:2 yuridika 189. sukriono, didik, “desain pengelolaan keuangan partai politik berbasis demokrasi menuju kemandirian partai politik” (2018) 3:1 j ilm pendidik pancasila dan kewarganegaraan 37–46. rachman, h. m. anwar. hukum perselisihan partai politik (jakarta: gramedia pustaka utama, 2016). 198 | reformulating political party court procedures in parties' dispute settlement rachman, m anwar. “penyelesaian perselisihan internal partai politik” (2017) 31:2 yuridika. satory, agus et al. meneroka relasi hukum, negara, dan budaya (jakarta: yayasan pustaka obor indonesia, 2017). sidharta, arief. meuwissen tentang pengembanan hukum, ilmu hukum, teori hukum, dan filsafat hukum (bandung: reflika aditama, 2007). suhardin, yohanes. "peranan hukum dalam mewujudkan kesejahteraan masyarakat" (2007) 25:3 jurnal hukum pro justitia. sukriono, didik. “desain pengelolaan keuangan partai politik berbasis demokrasi menuju kemandirian partai politik” (2018) 3:1 jurnal ilmu pendidikan pancasila dan kewarganegaraan. microsoft word 16769-ijls.docx indonesian journal of law and society (2020) 1:1 57-74 issn 2722-4074 | doi: 10.19184/ijls.v1i1.16769 published by university of jember, indonesia available online 31 march 2020 * corresponding authors’ e-mail: pdhelima@gmail.com the cost of panai as the marriage requirement for the migrant bugis tribe under adat law dhelima putri laksana* university of jember, indonesia dominikus rato university of jember, indonesia emi zulaikha university of jember, indonesia abstract. this research aims to examine the legal phenomena of the application of the panai money, the cost imposed for the migrant bugis customary law community in sukabumi village, mayangan district, probolinggo city, east java. in other words, panai' money is such customary money which must be handed over in bugis tribal marriages. the data analysis method used is descriptive qualitative. data collection techniques using literature study, observation, interviews, and documentation. the results of this study indicate that the submission of panai money has become a tradition that originated from an ancestor that is still valid today. due to the high panai money, however, many of the bugis people who wander no longer use panai money, as it takes into account the weakness of their customary values, as well as the many other cultures that influence, but there are still people who still defend it because of their strong customary values which they still hold even though in the migrant area. because panai money ’is a tradition that has long been a benchmark for bugis people, this tradition still strongly considers moral sanctions, and the avoidance of this money is responded by some people to decide to elope. keywords: migrant bugis tribe, marriage law, adat law. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 12/02/2020 reviewed: 14/02/2020 accepted: 10/03/2020 58 | the cost of panai as the marriage requirement for the migrant bugis tribe under adat law i. introduction marriage is a lifelong bond, which has been authorized by god. marriage is also a medium for someone's life, where it brings a man and a woman together to form a new life. marriage is a gate of the formation of a family that is in the life of the community, which is sometimes guaranteed the survival of the community in marriage.1 marriage not only requires something to just know, care, fulfillment, and commitment, but also requires an awareness of god in human life that leads him to the right path, the path to true happiness, and eternal. with marriage, it is what distinguishes humans from other god's creatures is the stage of unification to produce offspring, because humans in addition to having lust also have a mind which can think which is best for their lives in the future. this is stated in the 1945 constitution article 28b paragraph (1) that everyone has the right to form a family and continue the family and continue the descent through a legal marriage. the purpose of the verse is that the marriage is legally declared if those who do marriages according to islam, then the recording can be done at the office of religious affairs (kua), while for those who are catholic, christian, buddhist, hindu, the recording can be done at the civil registry office (capil). if the marriage has been registered, then all family members are guaranteed life by the state. in article 1 of the marriage law number 1 of 1974 concerning marriage states that marriage is an inner-outer bond between a man and a woman as husband and wife with the aim of forming a happy, eternal family (household) based on a godhead. the importance of marriage is also felt by the people in south sulawesi province, specifically makassar. for them marriage is very important to continue their offspring. the long marriage process, as well as the many mandatory requirements that must be met, make the bugis people have to bear the shame if one of the conditions is not met. in accordance with the 1 rato, dominikus 2011. marriage law and customary inheritance (kinship system, form of marriage and customary inheritance patterns in indonesia). surabaya: laksbang yustitia. at 14. 59 | indonesian journal of law and society customs prevailing in bugis-makassar, most of the requirements in conducting marriages are borne by the men, and almost all costs in carrying out the bugis traditional marriages are borne by the men.2. one of the conditions in a marriage in the bugis tribe in makassar, south sulawesi is to provide panai money, or what is often called the bugis tribe community, do 'menre'/doi 'panai (doi 'shopping)3. panai own money means the amount of money that will be fulfilled or given by men to women before stepping into the marriage procession given at the time of mapa'nessa which in the event negotiates and decides on everything related with a marriage procession.4 the panai money itself began in the dutch colonial era. at that time the dutch youth arbitrarily married the bugis-makassar woman he wanted, but after getting them he remarried to marry another woman, and left his wife. until finally the culture left an impression on the bugis-makassar community. this is what makes bugis women of ancient times seemingly insignificant and have no self-respect. however, gradually the culture has changed, since the arrival of a young man to marry a daughter of a bugis aristocratic family. parties from the daughter's family refused not without reason, but seeing that they had heard the culture that had once happened, they worried that her daughter's fate would be the same as other women. finally, to prove whether the young man was serious or not, the parents of the daughter requested that the young man provide the money that is now known as the 'predetermined' money. this was done not to burden the young man, but to raise the degree of women at that time. after the dowry is determined, the young man goes to find a way to get the dowry. arrange the young man, to find money for the girl he wants to marry. after years of wandering, finally the money desired by the daughter's parents was fulfilled. 2 lamallongeng. 2007. the dynamics of indigenous marriage in the bugis bone society. bone: culture & tourism office of boneregency at 6. 3 sri rahayu yudi. 2015. "nai's money: between love and prestige". journal of jamal multiparadigm accounting. volume. 6 number 2 at 225. 4 yunus, 2018. islamic values in the marriage process of the bugis society. journal of humanities: islam and culture. volume 2, no. 1, june 2018 at 90. 60 | the cost of panai as the marriage requirement for the migrant bugis tribe under adat law the young man went to meet the daughter's parents and give money in accordance with what they want. seeing the sincerity of the young man, the daughter's parents gave up their children to become his wife. the amount of panai money itself is influenced by many factors, one of which is the social status inherent in the two brides' candidates both from the social status of men and the social status of women. the higher the status the higher the panai money will be given. it is not uncommon for marriages to be canceled because of the high 'panai money', the party of men must give up the marriage that was dreamed of since they were unable to meet the demand for the 'panai money'. with the reality that is happening, the meaning of panai money 'itself has changed from the real intention, panai money' is used as a place of prestige to show excessive economic capacity, because of the high cash money 'which is the main requirement in bugis marriage, if the conditions are not filled with men has been regarded as shame or "ma siri '" (shame or self-esteem humiliated).5 in fact, it is not uncommon for requests from panai money to be used as weapons for the refusal of women to the men who come to propose if the men are not sanctioned by the parents of the women, the women will ask for the panai money 'as high as possible with the intention that the men were unable to meet the demand for the panai money. many bugis people migrate, making panai money 'no longer used in the marriage process. the bugis people who now migrate to java, especially the probolinggo regency, also no longer use the panai money 'as their main requirement and this makes it easier to dig up information because of the large number of bugis people who have settled in probolinggo. in addition, because the panai money 'is one of the characteristics of marriages in the tribe bugis, as well as the amount of panai money' which is also influenced by various factors, making the panai attractive to be studied. 5 agustar, 2018, "the tradition of panaik money in the marriage of the bugis tribe in the community of sanglar village, reteh district, indragiri hilir regency". jom fisip. volume. 5 number. 1. at 3. 61 | indonesian journal of law and society based on the description above, this article is organized into three parts. the first part will review the meaning of panai. the second part analyzes the bugis tribe community overseas who still retain the tradition of panai. the third part analyzes the impact of the money tradition panai if it is not provided. at the end of the writing the conclusions will contain the tradition of panai which is still being carried out by the bugis tribe overseas and its impact if not given. ii. panai money: an overview customary law is the law governing the forms of customary marriage, how to apply according to the customs of each region, customary marriage ceremonies, and termination of customary marriage in indonesia.6 in marriage there are also a number of things that make a marriage valid. the legality of marriage according to the customary law community in indonesia, for adherents of religion in general depends on the religion adopted by the community concerned. that is, if a marriage has been carried out according to the rules of religious law, then the marriage will be valid according to customary law.7 in the view of the bugis indigenous community, marriage itself aims to build, foster, and maintain harmonious family relations and kinship, and peace. that is because the values that live in indigenous peoples concern the purpose of marriage which must be regulated in an orderly manner, so as to avoid embarrassing irregularities and violations that can bring down the dignity, family honor and related relatives. in south sulawesi, especially the bugis-makassar tribe, marriage is considered sacred by the community, because for them marriage is a bond between the family of the male and the family of the female which will form 6 rosdalina., 2016. bugis community marriage implementation of law number 1 of 1974 concerning marriage. yogyakarta: istana publishing at 97. 7 hilman, hadikusuma. 2007. indonesian marriage law. according to the law, customary law, customary law. bandung: mandar maju at 26. 62 | the cost of panai as the marriage requirement for the migrant bugis tribe under adat law a larger family unit. that thinking makes them appreciate marriage so much. one of them appreciates the existence of a tradition in the marriage of the bugis-makassar tribe that is closely related to family ties, namely the culture of siri (shame) regarding panai 'money or nai pacce.8 the recognition of the bugis tribe community also confirms that in fact panai money 'is a characteristic of the local bugis marriage customs.9 they also justified that panai money 'is a culture that must exist and is obligatory to do when making a marriage. panai money itself is traditional money given by men to women in accordance with the agreement of the families of both parties. the purpose of the 'panai money' is to be used as a marriage fee when the marriage takes place at the bride's house.10 the function of the panai money tradition itself is the gift given economically which brings a shift in wealth because the panai money given has a high value.11 socially, bugis women have a high position and are respected. so overall the panai money 'is a gift given by the prospective bridegroom to the prospective bride. but the panai 'money will later be given to the parents of the women to be used as a wedding party. marriage parties can actually be done in two places first at the women's residence, then at the men's residence. for parties which are held at women's places, the money used is usually 'panai money to buy the party preparations, while the parties that are held at the place of men use their own costs from the men.12 for the bugis community a wedding party is an obligatory event to be held at the time of the wedding, even though the party is held in a simple form. this was done because according to the bugis community, the wedding was held as a form of gratitude to the creator, where they could 8 hajra yansa, et, al., 2016, panai money and women's social status in the siri 'cultural perspective of the bugis marriage of makassar, south sulawesi. pena journal. volume 3. number 2. at 526. 9 interviews with mr. h. muhammad tahir and hj.samsu nujung husband and wife of a native bugis tribe overseas on 3 december 2018 10 soerojo wignjodipoero. 1995. introduction and principles of customary law. jakarta: gunung agung at 37. 11 hajra yansa, supra note 8 at 526. 12 interview with mr. agus and mrs. siti hajar, an ethnic bugis husband and wife overseas on december 18, 2018 at the house of mr. agus and mrs. siti hajar 63 | indonesian journal of law and society gather with families far and near to watch the bride and groom join in the aisle.13 determination of the panai money itself is based on several determinants which according to lamallongen usually pay attention to objective factors and subjective factors in mate selection, namely regarding the readiness to settle down. objective factors that focus on issues concerning the economy, self-maturity, mental, character, and intelligence of both parties. the subjective factor focuses on the basis of love from both parties, which relates to feeling and loving one another. panai money 'is given to the family of women during the mappa'nessa which besides talking about the amount of panai money', also determines the day and date of marriage and everything related to marriage. if the panai money given by the bride and groom is big, then the wedding celebration is held lively, but conversely if the panai money is given a little then the wedding party is also simple too. the 'panai money' tradition cannot apply if marriages are carried out by men who marry non-buginese women. that is because the bugis man will follow the culture of the woman's family he will marry, so the panai money applies if the marriage is carried out by the bugis man and woman. however, this tradition is generally still maintained if bugis women are proposed by non-bugis men. this happens because in the bugis traditional marriage tradition, women are the picked up party, so the customs used are the customs of the women.14 the panai money given by these men, is not counted as a marriage dowry, but rather traditional money which is compulsory with the amount agreed upon by the families of both parties. determination of the panai money 'is done when applying is not without reason but, the determination was made to reduce the frequency of divorce.15 the panai money itself can be replaced with items such as cars, houses or land according to the agreement, but the money must still be available even if only a little, because the goods given are 13 rosdalina, 2016, supra note 6 at 72. 14 sri rahayu yudi, 2015, supra note 3 at 232. 15 rosdalina, 2016, supra note 6 at 64. 64 | the cost of panai as the marriage requirement for the migrant bugis tribe under adat law already of high value, so the rest of the panai money needn't be given in large quantities anyway.16 so with the determination of the amount of the panai 'money the man intended to think of suing for his wife's divorce given the huge cost he had incurred during the application. these high requirements were put forward so that men would appreciate the efforts of parents who gave birth to their daughters, raising them with affection to growing up. 17 for the bugis community, especially parents, a high amount of panai money is also likened to a substitute for milk money while they are raising their children. panai money 'is not directly given to the bride-to-be like a bride, but rather is given to the prospective wife's parents, so it can be said that the absolute right of the panai money holder' is the prospective wife's parents to finance all the needs of the wedding party. for the bugis community, substantial determination of spending money based on social status, education, descent, etc. is already a tradition and habit of the bugis community.18 the reason for the tradition must be followed other than because it has existed since ancient times, another reason is because if they do not do that tradition and they follow, it will cause a moral burden for their families, which is a form of ridicule from the surrounding community and even family.19 of all the assumptions about the tradition of panai money' ranging from the amount of panai money, determinant of the amount, to the negative assumption of this tradition, actually panai money 'has its own meaning for the bugis community, among others. first, social meaning. panai money 'is a tradition to maintain the status and self-esteem of bugis women, bearing in mind that in the past dutch youth who arbitrarily dropped the pride of bugis women by remarrying with other women. panai 'money is also done by the parents of the woman to test the seriousness of the man to marry his 16 interview with hj. rika, the wife of h. arifin, a native and married bugis couple on december 30, 2018 at hj. rika 17 interview with h. bustamin husband of a husband and wife of a native bugis tribe overseas on 18 december 2018 at the home of h. bustamin 18 rosdalina, supra note 6 at 64. 19 ibid. 65 | indonesian journal of law and society daughter. second, economic meaning. panai money 'is a tradition which is used as a form of help made by the bugis tribe community to ease the cost of marriage. third, legal meaning. panai money which is a tradition that has existed since the days of the ancients which is still used today, if it is no longer used, it will cause a canceled marriage because men cannot fulfill the conditions of bugis marriage and must bear the shame of their actions. fourth, cultural meaning. where people who still retain the panai money tradition as a tradition that must be preserved, so the community continues to do it even if they are not in bugis or in the overseas area. iii. panai in the bugis tradition bugis-makassar is an area that has fertile plains so that almost all bugis people choose to work as farmers. however, because the cost of living from working as a farmer is not able to support their daily lives, finally some people, especially the bugis youth, choose another livelihood, namely as a fisherman, not only turned into a fisherman in his own area, the bugis youth also went abroad to supplement his living expenses. they decided to go abroad to support their lives and family in their hometowns, but they also worked hard for very expensive marriages. most of them work as traders in their overseas areas, because keeping in mind the tradition of panai money that has been passed down for generations.20 the hard work done by the bugis youth is inseparable from the philosophy of marriage, which is still used as a guide before deciding to get married. philosophy contains the things that must be owned by a young man if he wants to get married. the philosophy is "around the kitchen seven times" which in bugis reads makkalu kitcheneng wekka pitu. this philosophy is intended for young bugis who want to get married or want to let go of their bachelor. 20 interview with mr. agus and mrs. siti hajar, an ethnic bugis husband and wife overseas on december 18, 2018 at the house of mr. agus and mrs. siti hajar. 66 | the cost of panai as the marriage requirement for the migrant bugis tribe under adat law the number seven in this philosophy means that there are seven stages or conditions that must be understood before fostering a family in a marriage bond or entering domestic life. the first stage includes the first who has mental readiness, the second has the maturity of thinking, the third understands responsibility, the fourth is able to be a good leader or priest for his family, the fifth is able to be wise in solving problems, the sixth is able to be a good role model for his family, seventh is able to become someone who has a consistent nature. if all these stages have been mastered, it means that the bugis youth are considered able to settle down. this philosophy is a motivation for the bugis youth to go abroad, in addition to the lover of hearts who will become his wife, meet the conditions of marriage, also used to prepare for the marriage party because in fact in the bugis tribe the marriage is done by parents matching their children.21 in bugis custom, marriage is not only about giving dowry and marriage contract like marriage in general, but there are still requirements that must be met before marriage. the requirement is the existence of a large sum of money sometimes not small, depending on the agreement of the two families. determining the amount of panai money, one of which can also be seen from the strata of a man or strata of women. achieving such a high degree in a social stratification system for the aristocracy is very important. but the recognition of the social strata is seen not only from marriage but can also occur because of other public activities, such as the place where men work. panai money itself is a tradition that has existed since previous ancestors to this day is still ongoing and is used by the community as the main requirement and as a characteristic of marriages from bugis adat. if seen from the early history of the 'panai money', the purpose and purpose of the panai money 'was symbolized as a form of appreciation to the women, but now it has turned into spending money, in preparation for a wedding. 21 interview with hj. rika, the wife of h. arifin, a native and married bugis couple on december 30, 2018 at hj. rika. 67 | indonesian journal of law and society the panai money which has changed function has now become a place of prestige to maintain the dignity of the family, making consideration of the perception of others outside the family about the bride and groom. and because of this, many bugis young men decided to migrate, bearing in mind that there was a large amount of panai money to hold a wedding, as well as many determinants of the panai money, from education, social equivalents, to where the men worked. guys. they will consider other people's perceptions about the amount of panai 'if they give panai money' in a low amount, given the existence of culture siri'. changing the aims and objectives of the 'panai money tradition' currently results in many men perceiving that panai money 'is a burdensome tradition, if the men come from lower middle income families, even feeling burdened by the tradition of panai money' which is valued this height is the main requirement for the marriage process.22 the change in the function of panai money 'caused many people to think about the high amount of panai money' which made most men migrate to look for women outside makassar with the intention that when they were married, they did not have to pay a lot of money. the large number of people who migrate is also one factor that the panai money tradition 'is no longer used as the main requirement in marriage. apart from the fact that their traditional values are weak, the existence of foreign cultures from each region also makes the tradition untenable. however, there are still many people who still maintain the tradition because of the strong customary values they hold so that panai money 'remains a mandatory requirement in conducting marriages, other than because of strong customary values the bugis people consider that the panai money tradition' is a tradition from the ancestors which must be preserved, and must be guarded. for them, besides the panai money, which is used as the cost of a wedding, the money is also used as a tradition for gathering families from various regions, if the tradition is not practiced, then the families of both parties, especially women will be 22 hajra yansa, supra note 3 at 529. 68 | the cost of panai as the marriage requirement for the migrant bugis tribe under adat law ashamed.23 so some of the bugis people who wander still maintain the tradition even though the panai money given is not too high. iv. impacts of the panai tradition panai money has long been a benchmark for the bugis community, including in preparing for a wedding. therefore, repeated behavior is carried out and occurs, if it is not done it will result in moral sanctions on the family, then the habit can be used as a source or guide in bugis traditional marriages.24 so it can't be if a habit that has long been lived suddenly has to stop being done or deliberately not doing it for a reason. usually a reason for the tradition of 'panai money' is not done is because of a factor in determining the amount of panai money '. the amount of the panai 'money can be determined from the prevalence or prior agreement between family members who will carry out the marriage. but unfortunately now the determination of the panai 'money cannot be seen from the sincerity and ability of the men. many determine the amount of panai money 'from the strata level, education, descent, even seen from the beauty or good looks of both parties. the many assumptions about the tradition of panai money make the bugismakassar tribe people have to work hard, and struggle, in order to fulfill the requirements of the panai money 'to marry the idol of his heart, or to prepare for his marriage. one of the strong reasons that pushed them to work hard was to fulfill the main requirements of marriage according to bugis custom, in order to be able to propose to the bugis woman who was his lover.25 but the fact is working hard is not enough to be a guarantee, so that the main conditions in bugis traditional marriages are met. there have been many men who have had to give up their relationship and go away from their lovers 23 interview with mr. agus and mrs. siti hajar, an ethnic bugis husband and wife overseas on december 18, 2018 at the house of mr. agus and mrs. siti hajar. 24 rosdalina, supra note 6 at 73. 25 interview with mr. agus and mrs. siti hajar, an ethnic bugis husband and wife overseas on december 18, 2018 at the house of mr. agus and mrs. siti hajar. 69 | indonesian journal of law and society to find another woman who does not ask for too much money.26 those who do this are usually men who will marry women from among those who uphold the values of siri'. people who uphold siri ' or shame are usually concerned with status and behavior that reflect their social strata. as proof, if the panai money 'given by ordinary men is very low to marry bugis women from the aristocracy, then the money given is not commensurate with the social strata of his family, it will cause shame for the family of the female party (siri').27 so that in determining the amount of panai money 'social strata is one of the most important factors. someone who has high social strata will be very concerned about people's views about the culture of siri ' . if this happens, then the man who wants to get married, will look for a partner who has a social strata that are commensurate, according to the panai which is agreed by the man. according to the local people, the determinant of giving panai money ' is based on social status, education, ancestry, etc. which are traditions or customs of the bugis custom.28 but, usually, the provisions of the amount of panai money apply to noble families, but no doubt the middle class community also think of the amount of panai money 'based on these factors. among the nobles, regard panai money 'as a culture of ancestral heritage that is no longer used as a culture that must be preserved, but a culture of prestige to boast the identity of each family, used as a venue to show the wealth of each family.29 for those marriages must keep and maintain, so that blue blood continues to flow from their circles. the big or small plan of the wedding party that is held and the prices that apply in the market are also one of the determinants of the amount of panai 'money. so if the woman 26 interview with hj. rika, the wife of h. arifin, a native and married bugis couple on december 30, 2018 at hj. rika. 27 interview with mr. agus and mrs. siti hajar, an ethnic bugis husband and wife overseas on december 18, 2018 at the house of mr. agus and mrs. siti hajar. 28 interview with mr. agus and mrs. siti hajar, an ethnic bugis husband and wife overseas on december 18, 2018 at the house of mr. agus and mrs. siti hajar. 29 ibid. 70 | the cost of panai as the marriage requirement for the migrant bugis tribe under adat law wants to have a large wedding party and wants to ask for a high-value delivery item, the panai money requested will be high, and this makes the man must meet the relatively high requirements. but, even though it is compulsory that the panai money 'is only used as money to buy the needs of the wedding party, so if the panai money given by the men will not influence who will be the heir, because the kinship system used by the bugis is parental so boys and girls are considered the same, so it doesn't have to be that one of their children follows his father's line because his father paid the panai money, because the panai money is only used as money for shopping purposes not to determine who has the right to be an heir or from whom their children get their inheritance rights. if the habit is not carried out or not followed, then there will be problems for the two families, one of which is to cause moral burdens for the family, or commonly called siri' (shame). families will get ridicule from the surrounding community.30 many of them also had to cancel their marriages because of the high sum of money, which caused one of the parties to decide to commit suicide or end his life. the culture of siri ' also reinforces the existence of these deeds, because their self-esteem is shamed; they are willing to exchange their lives, rather than having to live but feel burdened by the hurtful talk of people. for the bugis community there is also a tradition of 'panai money' required, because the money is in exchange for the love of parents who have educated and raised their daughters.31 in addition, because bugis traditional marriages are identical to the arranged marriages by both families, they oblige the tradition by increasing the amount of panai money 'to see the sincerity of the men. the panai money tradition is also seen as bothersome and burdensome for both men and women, which sometimes creates new problems for the 30 rosdalina, supra note 6 at 64. 31 interview with mrs. fatimah and mr. syamsul laksana as husband and wife of different ethnic groups on december 30, 2018 at the house of mr. syamsul laksana. 71 | indonesian journal of law and society family relationship of both parties, namely, their children who decide to elope due to a canceled or delayed marriage.32 besides that, another problem that arises from the 'panai money' is that if a man feels burdened after giving the panai money, then when there is a family dispute that causes the man to decide to divorce, many of the families of the men ask for compensation loss to court in the form of full refunds of cash. but because the panai money was classified as traditional and obligatory customary money which had been forfeited because it had been used for the purpose of a grand party with food that had been served at the wedding, the court could not grant the request of the men.33 so, the panai 'money that has been given cannot be asked to return whatever the reason, because previously there was an agreement at the time of application that men were able to fulfill these requirements. another impact, according to an explanation from the bugis community, is that sometimes they feel that the panai money is troublesome for both parties, that is, the woman is also troubling the men, which in turn will affect their lives.34 first if the bugis man and woman who has long been in a relationship then the man decides to apply, but due to the high demand for the panai, the application must be postponed until the man can fulfill the demand for the woman. with the delay in the application, men sometimes have to be in debt so that the application can proceed. in addition, a man is free if he cannot marry a previous candidate, he will look for another woman, who will later accept his application. but even though they are free to look for other women, they will also bear the shame of his actions, because he does not have a strong desire to get married, and there is no preparation before marriage. they also must be willing if the dream of marriage with their idol must be canceled or postponed until men can fulfill these 32 interview with hj. rika, the wife of h. arifin, a native and married bugis couple on december 30, 2018 at hj. rika. 33 interviews with mr. h. muhammad tahir and hj.samsu nujung husband and wife of a native bugis tribe overseas on 3 december 2018 34 interview with hj. rika, the wife of h. arifin, a native and married bugis couple on december 30, 2018 at hj. rika. 72 | the cost of panai as the marriage requirement for the migrant bugis tribe under adat law requirements. for women, the impact is that they must be willing to be single for a long period of time or become an old maid, because they have to wait for a man's proposal, because they refuse a proposal from a man because the money given is not in accordance with their wishes. it is their fault that causes the men to not be able to fulfill, that is, they always raise the amount of panai money, and in the end the woman refuses, and the proposal is canceled. that sort of thing sometimes causes many men to withdraw to marry bugis women, and women who are ready on their own if men decide not to continue marriage. v. conclusion the panai money is a tradition that starts from its grandmother is determined by several factors including, education, social strata, social status, heredity. the high requirement for panai money is actually to show the meaning of the tradition of the panai money, which is to provide lessons for men to respect bugis women, to see the seriousness of men if they want to propose bugis women, and to be used as a means of helping to alleviate marriage costs. there is a philosophy that is still held by the bugis community, that is, the kitchen with wekka pitu about marriage, the bugis youth must work hard to get the money for marriage costs and meet the panai money which is mandatory and fairly high customary money. due to the high amount of panai money, many bugis migrants now no longer use panai money as the main requirement in marriage, due to the weakness of their customary values, as well as the many foreign cultures that influence it, but there are still people who continue to retain these traditions as the main conditions in marriage because of their strong customary values which they still hold even in overseas areas. panai money is a tradition that has long been a benchmark for the bugis community in preparing for a wedding. therefore, behavior that is 73 | indonesian journal of law and society repeatedly carried out and occurs, if not done it will result in moral sanctions. moral sanctions in the form of ridicule from family and even neighbors. in addition, the change in the purpose and objectives of the panai money made the marriage null and void because the men refused the high pay. many of his marriages had to be postponed because of the high sum of the money. the panai itself is determined by education, social strata, descent, and usually these provisions apply to high society or nobility. with this provision, some of them chose to exchange their lives if they could not meet the money, or even some of them decided to elope because the marriage had to be postponed. references ashshofa, burhan. 1998. legal writing methods. jakarta: rineka cipta. hilman, hadikusuma. 2007. indonesian marriage law. according to the law, customary law, customary law. bandung: mandar maju. lamallongeng. 2007. the dynamics of indigenous marriage in the bugis bone society. bone: culture & tourism office of boneregency. rato, dominikus 2011. marriage law and customary inheritance (kinship system, form of marriage and customary inheritance patterns in indonesia). surabaya: laksbang yustitia. rosdalina., 2016. bugis community marriage implementation of law number 1 of 1974 concerning marriage. yogyakarta: istana publishing. soerjono soekanto. 1986. introduction to legal research. jakarta: university of indonesia (ui press). soerjono soekanto. 2006. normative legal research a short review. jakarta: raja grafindo persada. soerojo wignjodipoero. 1995. introduction and principles of customary law. jakarta: gunung agung. 74 | the cost of panai as the marriage requirement for the migrant bugis tribe under adat law agustar, 2018, "the tradition of panaik money in the marriage of the bugis tribe in the community of sanglar village, reteh district, indragiri hilir regency". jom fisip. volume. 5 number. 1. hajra yansa, et, al., 2016, panai money and women's social status in the siri 'cultural perspective of the bugis marriage of makassar, south sulawesi. pena journal. volume 3. number 2. muh. rusli. 2012. reinterpretation of traditional marriage of the bugis sidrap tribe of south sulawesi. karsa, vol. 20 no. 2, december 2012. sri rahayu yudi. 2015. "nai's money: between love and prestige". journal of jamal multiparadigm accounting. volume. 6 number.2. yunus, 2018. islamic values in the marriage process of the bugis society. journal of humanities: islam and culture. volume 2, no. 1, june 2018. makassar terkini. the meaning of daeng calls for bugis tribes. in https://makassar.terkini.id/makna-p-calls-daeng-bagi-suku-bugis/. accessed on 10 january 2019, 13.22. interviews interviews with mr. h. muhammad tahir and hj.samsu nujung husband and wife of a native bugis tribe overseas on 3 december 2018 interview with h. bustamin husband of a husband and wife of a native bugis tribe overseas on 18 december 2018 at the home of h. bustamin interview with mr. agus and mrs. siti hajar, an ethnic bugis husband and wife overseas on december 18, 2018 at the house of mr. agus and mrs. siti hajar interview with hj. rika, the wife of h. arifin, a native and married bugis couple on december 30, 2018 at hj. rika. interview with mrs. fatimah and mr. syamsul laksana as husband and wife of different ethnic groups on december 30, 2018 at the house of mr. syamsul laksana. microsoft word 16761-ijls.docx indonesian journal of law and society (2020) 1:1 37-56 issn 2722-4074 | doi: 10.19184/ijls.v1i1.16761 published by university of jember, indonesia available online 31 march 2020 * corresponding authors’ e-mail: dtriatmojo2@gmail.com revisiting the land conversion of the protected forest for the mining industry in tumpang pitu, banyuwangi dimas bagus triatmojo* university of jember, indonesia warah atikah university of jember, indonesia nurul laili fadhilah university of jember, indonesia abstract. indonesia is a country that has abundant natural resources, both renewable and non-renewable. the wealth of natural resources contained in the motherland can be utilized for the needs and welfare of the people of indonesia under article 33 paragraph (3) of the 1945 constitution. one of the natural resources in indonesia is forests. the government establishes a forest area as a protected forest area for a benefit that is expected by law. there is a violation of the use of protected forest areas for interests outside the forestry sector, namely the conversion of the function of protected forests used as mining land violations that are contrary to article 38 paragraph 4 of law number 41 of 1999. mining business activities have negative impacts as well as positive impacts that arise. mining will harm environmental conditions that can affect the social life of the community, reducing the environmental quality of the positive impact of the existence of mining business activities in an area will cause changes to the economic level, the legal basis for protecting the affected communities in the mining sector, as mandated by article 28g paragraph (1) and article 28h paragraph (1) of the 1945 constitution. keywords: transfer of protection forest functions, mining impacts. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 12/02/2020 reviewed: 14/02/2020 accepted: 10/03/2020 38 | revisiting the land conversion of the protected forest for the mining industry in tumpang pitu, banyuwangi i. introduction indonesia is a country that has abundant natural resources, both renewable and non-renewable, as those biological resources and non-biological resources. indonesia's vast natural wealth should be able to use it for the welfare and prosperity of the indonesian people and be used for the lives of many people under the 1945 constitution article 33 paragraph (3), namely: earth, water and the natural resources contained therein are controlled by the state and used for the amount of prosperity of the people. utilization of the forest area must be adjusted to its primary function in activities to preserve the environment must have several means, namely institutional facilities, funds, and legal facilities. the law has a position and importance in dealing with and solving various problems in the environment and is a juridical basis for implementing state policies that must be implemented by the government.1 however, in the context of utilizing forest areas that have been expected by law, it cannot be avoided that violations of the use of forest areas for interests outside the forestry sector. one of them is the mount (gunung) tumpang pitu forest area, pesanggaran subdistrict, banyuwangi district, the forest area is one of the protected forest areas in indonesia. the protected forest area itself has the primary function outlined in law number 41 of 1999 as a life buffer to regulate water management, prevent flooding, control erosion, prevent seawater intrusion, and maintain soil fertility. like the other main functions of the protected forest, gunung tumpang pitu protection forest also has a primary function similar to the passage of time in the forest area found in the soil contains precious metals in the form of gold and copper. so that makes the surrounding community anxious about environmental damage if mining activities are carried out. the benefits of mining activities in indonesia, where the management of mineral and coal resources can provide benefits for the welfare of the community at large, are expected by law to ensure the effectiveness of the implementation 1 joni h. 2016, tindak pidana lingkungan hidup. pustaka pelajar, at 2. 39 | indonesian journal of law and society and control of mining businesses in a practical, productive, competitive manner. the key to the success of mining development does not only depend on the amount of wealth or potential of its mineral resources but is determined by political stability, business climate, and success in implementing mining business activities depends on legal certainty, this legal certainty is related to certainty about rights and obligations, especially from the holders iup and iupk.2 ii. protected forests to become open mining land forests are an invaluable national treasure so that the rights of the state to forests and their products need to be protected, maintained, and protected. the forest has a crucial position and role in supporting national development carried out by the central government or regional government as well as the surrounding community in the forest area as explained in article 33 paragraph (3) of the 1945 constitution, namely: earth, water and the natural resources contained therein are controlled by the state and are used for the greatest prosperity of the people. in the forestry general plan book, the minister of forestry decree number 191/kpts-ii/1986 has been stipulated. explained several activities that support the direction and objectives of forestry development for the national interest, carried out with the primary efforts, as follows: first. development platform for forestry. the development is part of national development and has a philosophical foundation, constitutional foundation, and conceptual foundation. aside from the three foundations of forestry development, the operational, technical foundation is also the basis for the implementation of forestry development. based on the forestry development plan, it is expected that in managing the forest, the exploitation 2 salim. 2012. hukum pertambangan mineral dan batubara. sinar grafika. at 56. 40 | revisiting the land conversion of the protected forest for the mining industry in tumpang pitu, banyuwangi and its benefits for the maximum welfare of the people and having the right direction do not violate the law. second. principles, objectives, and role of forestry development. the principle of forestry development is forest preservation and optimal progressive benefits. this can be classified as forestry development, which is oriented towards the human environment. on that basis and orientation, the objectives are to achieve in forestry development in which it employs the maximum benefits in a versatile and sustainable manner both directly and indirectly. understanding protection forests based on law number 41 of 1999 article 1 on forestry is a forest area that has the primary function as a life support system to regulate water management, prevent flooding, control erosion, preventing seawater intrusion, and maintaining soil fertility. the protected forest area is an area created with the primary function of protecting environmental sustainability, which includes natural resources, consisting of animal and vegetable resources.3 the protection function will run optimally if the physical condition of the forest looks good. on the contrary, the protection function is terrible if the condition of the forest is damaged. forest management is regulated in government regulation no. 6/2007, and government regulation no. 3/2008 is intended to cover several aspects of activities, namely forest and preparation plans management protected forest, utilization, and use of protected forest areas, rehabilitation and reclamation of protected forests and nature conservation in protected forests. the importance of the management of areas forest protection, of course, has the following objectives: (a) to improve the function of protected forest on soil, water climate, flora and fauna and historical value; and (b) to maintaining some diversity of plants, animals, types of ecosystems and natural uniqueness. in terms of implementation activities over the function of the protected forest into open-cast mining certainly not under what was planned by 3 warah atikah. 2007. pola pengelolaan kawasan hutan lindung dan permasalahannya. at 38. 41 | indonesian journal of law and society government regulation no. 6 of 2007 which has the aim to increase the benefits of natural resources and maintain the sustainability of the diversity of flora and fauna contained in the protected forest. the causes of the management of protected forest areas are very numerous. several government agencies are responsible for the failure in managing protected forest areas that have been converted into open-pit mining located in the mount tumpang pitu area of banyuwangi regency. the area, which was initially a production forest area and protected forest mining activities, began on january 17, 2006, carried out by pt. indo multi niaga (imn) and in 2012 shares owned by pt. indo multi niaga was sold to pt. bumi sukses indo and pt. peace of indo success to date. the issuance of licenses to carry out mining activities relates to the meaning of article 33 paragraph (3) of the 1945 constitution. likewise, the underlying philosophy of ratification of minerals and coal in law number 4 of 2009, based on article 33 paragraph (3) the 1945 constitution. this is stated in law number 4 of 2009, as minerals and coal as natural resources in the indonesian mining jurisdiction, constitute the maximum natural resources controlled by the state for the prosperity of the people. however, for the management, it is given to the government and regional government, which also means that the authority to issue mining licenses is in the hands of the government and regional governments under their respective authorities. according to article 1 number 7 of law number 4 of 2009 concerning mineral and coal mining, mining business license (iup) is an effort to carry out mining carried out by the minister, governor, regent under their authority. the authority to issue iup can be granted by the multilevel governance.4 first, regent/mayor authorized to issue mineral and coal mining business licenses requested by the applicant if the mining business permit area (wiup) is in one regency/city area. second, the governor has 4 tri hayati. 2015, era baru hukum pertambangan di bawah rezim undang-undang nomor 4 tahun 2009, yayasan pustaka obor indonesia at 155. 42 | revisiting the land conversion of the protected forest for the mining industry in tumpang pitu, banyuwangi the authority to grant mineral and coal mining business licenses requested by the applicant if the mining business permit area (wuip) is located across regencies/cities in one province after obtaining a recommendation from the local regent/mayor under statutory provisions. third, the minister has the authority to grant mineral and coal mining business licenses requested by the applicant if the mining business permit area (wiup) is in the crossprovincial area after obtaining a recommendation from the local governor, regent/mayor under statutory provisions. factors for the conversion of protected forest to mining land companies that work in the mining sector before conducting mining activities conduct a study to explore minerals in the area that will be used as mining to find out how much metal minerals are contained in the mount tumpang pitu area. the research was conducted by the joint ore reserve committee of the jorc code and ni 43-101 from brisbane, australia, along with consultants hellman and schofield. the research results of the jorc code have resulted in the estimation of the content of precious metals in mount tumpang pitu in the form of gold, silver, and copper. in research conducted by the jorc code and ni 43-101, it estimated of every one ton of excavated weight is likely to get as much as 0.2% gram/ton in copper and 0.40% gram/ton gold. so in the 499.6 million tonnes of excavated materials, the copper that can be obtained is 8.8 billion pounds, and 14 million ounces of gold excavated from 150 meters to 200 meters below ground level. moreover, most likely the potential for metal ore increases based on geological factors, the estimated value-added stated by jorc code and ni 43-101 approximately 800 million to 850 million tons of minerals consisting of 0.3% -0.4% copper and 0.4-0, 5 gram/ton of gold the study was conducted in the gold-copper zone in the mount tumpang pitu area.5 5 phillip l, hellman. 2010. phillip l, hellman.. tujuh bukit project report on mineral resources. at 64. 43 | indonesian journal of law and society the results of research conducted by jorc code and ni 43-101 were told that the mount tumpang pitu area could produce 143,000 ounces of gold per year to get 1 ounce of gold ore, a fee of 376 usd would be required.6 over time, the mount tumpang pitu area will likely be able to produce more mineral metals in gold, copper, and silver. the opinion above is also strengthened by jica (japanese international cooperation agency) research, which explains that the mount tumpang pitu area is said to have the highest quality rocks that can even exceed the quality of gold in the batu hijau sumbawa area owned by pt. newmont. the mount tumpang pitu area has the highest quality rocks because it is located in the middle of the sunda-banda magmatic arc.7 mining business licenses must be owned by every business actor who will carry out mining activities in indonesia. in terms of granting permits made by the government to companies that carry out mining activities in the area of mount tumpang pitu. the government has issued permits twice to the company concerned with a letter numbered 188/57/kp/429.012/2006 as a permit to review (skip) the government provides recommendations for companies to conduct a review in the gunung tumpang pitu area and then one year later in the year 2007 the government issued permits numbered 188/05/kp/429.012/2007 to companies that aimed to provide exploration mining permits (iup). with the advent of law number 4 of 2009 concerning mineral and coal mining, the government renewed the permits that had been previously given to pt. imn (indo multi niaga). on january 25, 2010, the government renewed the exploration iup under 188/9/kep/429,011/2010 with a duration of 4 years, and in the same year, the government issued a production 6 ibid, at 68. 7 yu yu myaing, arifudin idrus, anastasia titisari. 2018. fluid inclusion study of the tumpang pitu high sulfidation ephitermal gold deposit in banyuwangi district, east java, indonesia at 9. 44 | revisiting the land conversion of the protected forest for the mining industry in tumpang pitu, banyuwangi operation iup number 188/10/kep/429.011/2010. the permit has a duration of up to 20 years.8 mining activities carried out by pt. the imn from 2006 to 2012 was carried out in the area of the mountain tumpang pitu area of 6623.45 hectares as an exploration site, and the government approved the location of the production operations area of 4998 hectares in total, all mining areas in the mount tumpang pitu area of around 11,621.45 hectares9 in 2012 pt. imn transferred its shares to pt. bsi (bumi sukses indo) which in act number 4 of 2009 in article 93 explains that iup and iupk holders may not transfer their iup and iupk to other parties. also, transfer of ownership and/or shares on the indonesian stock exchange can only be done after conducting certain stages of exploration activities. transfer of ownership and/or shares as referred to in paragraph (2) can only be done with the following conditions: (a) must notify the minister, governor, and regent/mayor by their authority; (b) as long as it does not conflict with the provisions of the legislation. the government approved the transfer proposed by pt. imn to pt bumi sukses indo with decree number 545/764/429,108/2012 issued on december 6, 2012, until now, the gunung tumpang pitu mine owner is controlled by pt. bumi sukses indo. if seen from article 93 of law number 4 of 2009 it is stated that the holders of iup and iupk cannot be transferred to other parties, then the decree issued by the government has irregularities, and the government can be sued to ptun because it has issued a decision letter that is not under the law. transfer of ownership of a mining company to pt. bsi in 2012 became a breath of fresh air for the ongoing mining activities and to launch mining activities in the area of mount tumpang pitu in the production forest area of 11,621.45 hectares. it includes the addition of land for mining in the protected forest area so that it can proceed according to its plan. pt. bsi 8 s. phillip l, hellman. op.cit . at 12. 9 ibid, at 11. 45 | indonesian journal of law and society which applied to the banyuwangi government to reduce the status of protected forest to production forest. banyuwangi regent abdullah azwar anas responded to the request submitted by pt bsi by issuing letternumber 522/635/429/108/2012 dated october 10, 2012, which was proposed to the ministry of forestry by requesting the decline in the status of protected forest to production forest of 9,743 hectares in 2013. the ministry of forestry issued a decree number sk 826/menhut-ii/2013 dated november 19, 2013, signed by zulkifli hasan agreed that the decline in the status of protected forest to production forest was only 1,942 hectares. the conversion of the function of protected forest to mining is contrary to law no. 41 of 1999 concerning forestry article 38 paragraph (4), which states that protected forest areas are prohibited from mining with open mining patterns. the purpose of the application submitted by pt. bsi is clear to facilitate activities mining in protected forest areas so as not to conflict with laws forestry, but the ministry of forestry's decision to convert protected forests into production forests that will be used for mining with open patterns has been under law no. 41 of 1999. based on law number 41 of 1999, article 19 explains that the government determines changes in the designation and function of forest areas based on the results of integrated research. changes in the designation of forest areas, as referred to in paragraph (1), which have significant impacts and broad and strategic value, are determined by the government to approve the house of representatives. government regulation shall regulate provisions regarding the procedure for changing the designation of the forest area and changing the function of the forest area as referred to in paragraph (1) and paragraph (2). if it is seen based on article 19 of the forestry law above, the government can change the function of the forest area, but the government cannot easily change its function. changes in forest areas carried out by the government must have sufficient consideration in providing decisions concerning the lives of many people. factors underlying the protection forest was conversion into production forest for activities mining in the area of mount tumpang pitu. the 46 | revisiting the land conversion of the protected forest for the mining industry in tumpang pitu, banyuwangi activities are mining prohibited carried out on protected forests with an open mining pattern and mineral wealth contained in mount tumpang pitu that can grow the economy of the region, especially and nationally as a whole general. the government of banyuwangi regency, in terms of mining business in the area of mount tumpang pitu has a role. the regional government generates the profit generated by the mining business by providing what percentage of income each year to the banyuwangi regency government, but the method proposed by pt. bsi to the banyuwangi local government with the method golden share. the method is a golden share that companies give a few percents of shares owned to the regional government that aims to develop the regional economy. with this method the government will benefit significantly from mining results carried out in the area tumpang pitu mountain, the method carried out by the banyuwangi government is the first in indonesia.10 according to the regent of banyuwangi, abdullah azwar anas the existence of mining in the banyuwangi regency has provided enormous benefits for the banyuwangi community. the shares owned by the regional government increased by tens of fold, the amount obtained by the banyuwangi government from 229 million shares owned by the local government continues to increase in value, which initially only received idr 20 billion and now is idr 580 billion. the revenue goes directly to the banyuwangi regional treasury.11 the mineral wealth factor contained in the mount tumpang pitu area which can produce 143,000 ounces of gold per year and the golden share that has been promised to the government especially the regional government is undoubtedly a consideration, in this case, the ministry of forestry to change the function of protected forest areas into production forests for mining use with the open method. the government should consider the adverse effects 10 tingkatkan kualitas program csr, bsi tandatangani mou bersama bupati banyuwangi. https://bumisuksesindo.com/berita/improving-csr-program-qualitybsi-signs-mou-with-banyuwangi-regent (accessed on november 21 2018 at 16.55 wib) 11 ibid. 47 | indonesian journal of law and society of turning protected forests into production forests for mining use before reducing the status of protected forests to production forests. mount tumpang pitu protected forest area, which has a very abundant mineral wealth becomes an area that can play an essential role in terms of growth and development in terms of the economy of the banyuwangi region. banyuwangi regency gets results from activities mining in one year as much as idr 580 billion goes into the regional treasury which has been explained by the regent of banyuwangi to build public facilities in the regency. iii. legal protection for communities around the gold mining activities mining activities have positive and negative impacts on the lives of communities around the mining area and the country's national development. the mining business is a business that utilizes natural resources, including effort exploration, exploitation, and processing. thus in the mining, business activities are very dependent on natural conditions that are focused on geological processes that have taken place naturally in nature. therefore, the impact of development in the mining sector can occur on a local or global scale. its impact is a change or effect that occurs as a result of an activity, as it is not planned or outside the target. to find out an impact or change that occurs must have comparative material as a reference, one of which is the state before the change occurs.12 according to soemarwoto, the impact is a change that occurs as a result of an activity that is both natural, chemical, physical, and biological that affects the socio-economic community around 12 ilmi hakimi. 2015. dampak kebijakan pertambangan batu bara bagi masyarakat bengkuring kelurahan sempaja selatan kecamatan samarinda utara. universitas mulawarman. at 2. 48 | revisiting the land conversion of the protected forest for the mining industry in tumpang pitu, banyuwangi him.13 the impact can be positive benefits, and can also be negative in the form of risk, both of which can impact the physical and non-physical environment, including the social economy. metallic minerals are included in non-renewable natural resources. metallic minerals have unique properties that a mine can work on; the minerals will not grow or be renewed because its non-nature renewable mining activities will affect the shape of the earth's surface and can damage the environment. environmental impact, according to article 1 number 26 of law number 32 of 2009 concerning environmental protection and management, is the effect of changes in the environment caused by a business and/or activity. mining activities are considered as a source of environmental degradation. metal mineral mining will have an impact on the existing environmental conditions that can affect the social life of the community around the mining area, reduce environmental quality and reduce the productivity of the land because it can destroy the substances or minerals contained in the soil. in the case of environmental conditions, the existence of mining activities carried out in exploitation. the exploitation of natural resources or natural resources of the mine will only lead to and support economic growth and lead to environmental issues that will provide the possibility of disasters in the future as well as changes in the shape of a plateau, which can affect environmental quality and can reduce productivity soil because it can destroy substances or minerals contained in the soil. according to qomariah, the impact caused by mining activities not only causes air pollution which results in deterioration of health but also results in the emergence of a basin surrounded by former quarry that has been mixed with the remnants of the mine (tailings) which in the rainy season the basin will be a lake. remnants of mining material flow into rivers and cover agricultural land and 13 teuku ade fachlevi. eka intan keumala putri & sahat mh simanjuntak. 2016. dampak dan evaluasi kebijakan pertambangan batubara di kecamatan mereubo. bogor agricultural institute. at 172. 49 | indonesian journal of law and society plantations, resulting in loss of vegetation (plants) of wildlife populations and declining quality water.14 for this reason, mining appears problems with environmental management, in order to maintain ecological functions and maintain existing ecosystems. communities around the mining area are victims of gold mining activities because they are close to mining activities. consequently, the community becomes disadvantaged because of the existence of mining business activities, even though the community has the right to live comfortably. all indonesian people are also entitled to have a good environment, as mandated by article 28h paragraph (1) of the 1945 constitution of the republic of indonesia which reads: "every person has the right to live in physical and spiritual prosperity, live, and obtain a living environment that is good and healthy and has the right to receive health services." the government must think of solutions that can provide a sense of comfort, security, and prosperity to the people in the mining area. the company that conducts mining has a social responsibility of the mining company (corporate social responsibility) to environmental problems that occur as a result of mining business activities, in general, the principle of csr (corporate social responsibility)on environmental aspects is closely related to law number 32 of 2009 concerning protection and environmental management (uupplh), especially regarding the obligation to make an amdal.15 therefore the negative impact that is given due to activities mining on the community, especially people who are in the area of the mining area, the government must ensure that mining companies do not litter. mining business activities become part of the way to bring in foreign exchange because, in its utilization, mining can be exported abroad. besides, through 14 risal, paranoan & djaja. 2013. analisis dampak kebijakan pertambangan terhadap kehidupan sosial ekonomi masyarakat di kelurahan makroman. universitas mulawarman. at 10. 15 busyra azheri, 2016, prinsip pengelolaan mineral dan batubara, divisi buku perguruan tinggi pt. raja grafindo persada, at 93. 50 | revisiting the land conversion of the protected forest for the mining industry in tumpang pitu, banyuwangi foreign investment, the potential of natural resources in developing countries such as indonesia can provide economic added value for people's welfare. foreign investment will occur state revenue from the tax and non-tax sector, expansion of employment, transfer of technology, skills, and knowledge, as well as macro-economic growth. the role of foreign investment for national economic development is a measure of the amount that goes into a country.16 there are some government's efforts in the optimal use of mining minerals for the present and the future. mineral resources, as one of the natural wealth owned by the indonesian people, if appropriately managed, will contribute to the country's economic development. the objectives of mineral and coal management as follows:17 (a) mastery of mineral and coal mining as a nonrenewable natural resource is a national wealth controlled by the state for the maximum welfare. the control of minerals and coal by the state is carried out by the government and regional governments; (b) nsuring the effectiveness of the implementation and control of mining business activities in an efficient, effective, and competitive manner; (c) guarantee the benefits of mineral and coal mining in a sustainable and environmentally friendly manner; (d) guarantee the availability of minerals and coal as raw material and as a source of energy for domestic needs; (e) supporting and developing national capabilities to be more able to compete at the national, regional and international levels; (f) increasing the income of local, regional and state communities, as well as creating jobs for the maximum welfare of the people; and (g) ensuring legal certainty in conducting mineral and coal mining business activities. mining activities can support the development of a country because it results from the use and management of mining. in its regulation, gold metal mineral mining is regulated in law number 4 of 2009 concerning mineral and coal mining. the state controls over minerals as described in article 4 16 ahmad redi. 2014, hukum pertambangan, bekasi gramata publishing) at 198. 17 ibid at 24. 51 | indonesian journal of law and society paragraph (1) of law number 4 of 2009 concerning mineral and coal mining which reads: "minerals and coal as non-renewable natural resources are national assets controlled by the state for an amount of -great prosperity of the people." mining activities in the area of mount tumpang pitu protected forest named pt. bsi (bumi sukses indo), which has obtained a permit from the government to carry out mining activities with exploration iup number 188/9/kep/429.011/2010 and production operation iup number 188/9 / kep/429.011/2010. activities mining conducted by pt. bsi in the area of gunung tumpang pitu covering an area of 6623.45 hectares as an exploration site and the location of production operations is carried out with an area of 4998 hectares in total, all mining areas in the mount tumpang pitu area are around 11,621.45 hectares. mining conducted at mount tumpang pitu is adjacent to one of the leading tourist attractions in banyuwangi, namely the red island coast. mining conducted at mount tumpang pitu has been running for approximately 18 years. mining activities carried out by pt. imn in mount tumpang pitu caused strong reactions from the community at the beginning of the plan to manage natural resource potential in the banyuwangi regency. some people consider mount tumpang pitu, which is close to the high seas, to be a natural wave barrier and a barrier to sea winds because, on june 3, 1994, there was an earthquake and tsunami on the coast of banyuwangi. the existence of mount tumpang pitu was a barrier to the waves. during the 18 years of conducting mining activities, activities have had a direct or indirect impact on the area of the mount tumpang pitu environment, communities around the mine, and the banyuwangi regional government. by taking into account the impact felt by the community around mount tumpang pitu since the mining activity appeared, the initial social impact of the people who no longer lived safely and harmoniously, competed with each other to the point where residents were not harmonious. this is because residents around mount tumpang pitu, who initially worked 52 | revisiting the land conversion of the protected forest for the mining industry in tumpang pitu, banyuwangi as fishermen and farmers, were turned into miners because they were tempted by the mining products they obtained and the surrounding community invested in exploration to aim for higher income. at the time, pt. imn began planning the conflict mining that hit the community in the district of pesanggaran, especially the gunung tumpang pitu area began to heat because people thought mining exploration by pt. imn is allowed, while the traditional community is not allowed even if it burns one of the posts owned by pt. imn, until the corporation has prosecuted some people. however, it is different from the community's condition in sumber agung village, where many migrants choose the location, especially mining employees, so that the surrounding community becomes entrepreneurs and builds boarding houses that are rented out for mining employees. economic conditions in the sumber agung village area have developed rapidly in line with mining activities. in 2010 the government granted a production operation mining business license (iup) to pt. imn impacts that are starting to be felt by the community around the mine are environmental impacts due to pt. imn has conducted mining activities until 2012, the shares of pt. imn was sold to pt. bsi continues the mining activity process. the mining process carried out at mount tumpang pitu uses an extraction process that is harmful to the environment, namely using mercury metals for the amalgamation process because the costs incurred are relatively low. according to the minister of the environment, the mercury content is 0.005 ppm. mercury is one of the causes of global environmental problems because its high toxicity causes several harmful effects on human health, animals, and the environment. based on what has been explained in article 96 letter (e) of law number 4 of 2009 concerning mineral and coal mining explains: "management of the remaining mine from a mining business activity in the form of solid, liquid, or gas to meet environmental quality standards before being released to environmental media." 53 | indonesian journal of law and society if seen from article 96 letter (e), the mining company carried out by pt. bsi is not following the law on mineral and coal mining in terms of doing waste treatment or tailings use for the tailings generated by mining activities containing high levels of mercury. the government has provided quality standard provisions where the lowest levels of mining waste containing 0.031 ppm in liquid waste and the highest are 0.062 ppm in sediment waste. waste generated by mining activities in the gunung tumpang pitu area is a severe impact on the environment of the mining area because mining waste is hazardous in the future for community life in the mining area, especially the mining area is very close to the tourist attractions of pulau merah beach. in 2016, pulau merah beach was affected by mining activities, which caused the beach to be polluted by mud and the frog river, emptying on the beach carrying material. communities around the mining area feel disadvantaged due to the negative impacts generated due to mining activities, even though the community also has the right to live comfortably and is entitled to legal protection. as mandated by article 28g paragraph (1) of the 1945 constitution of the republic of indonesia which outlines everyone has the right to personal, family, honor, dignity, and property under his authority, and is entitled to a sense of security and protection from the threat of fear of doing or not doing something that is a human right. all indonesian people are also entitled to have a good environment, as mandated by article 28h paragraph (1) of the 1945 constitution of the republic of indonesia which outliness: "every person has the right to live in physical and spiritual prosperity, to live, and obtain a living environment, good and healthy, and have the right to receive health services." all indonesians have the same opportunity before the law. given protection by law to be able to live comfortably and get a good living environment. everyone has the right to do this, including the people who live in the mining area, they also have the right to the welfare of their lives and obtain a decent 54 | revisiting the land conversion of the protected forest for the mining industry in tumpang pitu, banyuwangi place to live with a good environment to continue their lives. some problems have an impact on the environment due to gold mining business activities in various regions in indonesia. the indonesian government makes regulations regarding mining as well as possible to anticipate the existence of things that are not desirable. community protection is regulated in article 145 of law number 4 of 2009 concerning mineral and coal mining, which outlines that people who are directly negatively affected by mining business activities are entitled to obtain appropriate compensation due to errors in the control of mining activities under statutory provisions invitation. also, they can file a lawsuit with the court for losses resulting from mining operations that violate the provisions. in addition, provisions concerning community protection as referred to in paragraph (1) shall be determined based on statutory provisions. the community around the mine plays an essential role in the existence of mining business activities because to carry out a mining activity, especially gold, it must be able to consider the interests and safety of the community around the mining area. communities around the mine must accept all consequences arising from the existence of mining activities. for that reason, in conducting gold mining activities, mining entrepreneurs must be careful and obey all the rules that have been set. regulations regarding legal protection for people affected by mining activities have been clearly regulated in article 145 of law number 4 of 2009 concerning mineral and coal mining, which regulates community protection. the protection of people affected by mining is related to the protection of the environment. one thing is sure to conduct mining activities detrimental to the community in the field of environmental conservation. for this reason, law number 23 of 2009 concerning environmental protection and management stipulates that environmental protection and management are systematic and integrated efforts undertaken to preserve environmental functions and prevent environmental pollution and/or damage, which includes planning, utilization, control, maintenance, supervision, and law enforcement. in the case of gold mining business activities while maintaining 55 | indonesian journal of law and society environmental sustainability is the main thing, it is in direct contact with the lives of people who live in the mining area. iv. conclusion factors underlying the government to change the function of protected forests into production forests that will be used for mining activities is to facilitate the licensing of mining activities carried out on protected forests in conflict with law no. 41 of 1999 concerning forestry, and the content of mineral resources in the area of mount tumpang pitu is very abundant. it can produce 143,000 ounces of gold per year by the jorc code. pt. bsi provides mining revenue sharing to the government using the method golden share. one of the positive impacts of mining that is given directly by mining activities is opening up employment opportunities, can grow the economy of the community around the mine and can help grow the regional and national economy. positive impacts indirectly can build public facilities for free. the negative impact directly from mining can undoubtedly cause damage to the environment, causing conflict in the surrounding community. the negative impact is indirect, namely the disposal of waste produced can pollute the environment. legal protection of communities affected by mining is carried out by enforcing law number 4 of 2009, law number 32 of 2009, government regulation number 23 of 2010. suggestions aimed at resolving the above problems are that the central and regional governments are expected to be more careful when supervising mining activities. in practice, several government decisions are still in conflict with law number 41 of 1999 concerning forestry concerning the conversion of protected forest as well as supervision of the impact of mining activities so that conflicts do not occur to the community, due to the management of waste containing mercury with high levels that are not under article 96 letter (e) of law number 4 of 2009. 56 | revisiting the land conversion of the protected forest for the mining industry in tumpang pitu, banyuwangi references joni h. 2016, environmentalcriminal.student library. salim. 2012. mineral and coal mining law. sinar grafika. tri hayati, 2015, new era of mining law under the regime of law number 4 of 2009, indonesian pustaka obor foundation busyra azheri, 2016, principles of mineral and coal management, pt. raja grafindo persada. warah atikah. pattern of management of protected forest areas and their problems. 2007. phillip l, hellman. tujuh bukit project report on mineral resources. 2010. yu yu myaing, arifudin idrus, anastasia titisari. fluid inclusion study of the overlapping high sulfidation ephithermal gold deposit in banyuwangi district, east java, indonesia.2018 ilmi hakimi, impact of coal mining policy for the community of bengkuring selatan sempaja village, north samarinda district, (2015) pap mhs polit univ mulawarman. teuku ade fachlevi, eka intan keumala putri & sahat mh simanjuntak, impact and evaluation of coal mining policy in mereubo district, 2016. semuel risal, db paranoan & suarta djaja, analysis of the impact of mining policies on the socio-economic life of the community in makroman village, 2013, 1: 1 ej adm reform. sukriyah kustanti moerad, endang susilowati, windiani. mapping of potential and economic impacts of communities in the bukit tumpang pitu banyuwangi mining area. november 10 institute of technology. https://bumisuksesindo.com/berita/improving-csr-program-quality-bsisigns-mou-with-banyuwangi-regent. microsoft word 24661-edit.doc indonesian journal of law and society (2021) 2:2 145-164 issn 2722-4074 | doi: 10.19184/ijls.v2i2.24661 published by the university of jember, indonesia available online 30 september 2021 _____________________________ * corresponding authors’ e-mail: aniqatun777@gmail.com covid-19 pandemic and simultaneous regional head elections in indonesia aniqotun nafiah* university of muhammadiyah surabaya, indonesia nur azizah hidayat university of muhammadiyah surabaya, indonesia abstract: the covid-19 pandemic hurts almost all sectors, particularly the government, like the simultaneous regional head election. the indonesian government, along with the general election commission and the indonesian house of representatives through the government regulation in lieu of law no. 2 of 2020, agreed to postpone it until december 2020 to reduce the spread of covid-19. to date, the pandemic has not ended yet, considered that the delay might be ineffective. another issue was the emergence of other simultaneous elections in 2024, in which several steps have begun to be implemented this year. this study aimed to discuss the issue of the simultaneous regional head elections during the pandemic. it raised two issues. first, while the elections were still held to avoid vacancies, their implementation must be adjusted to the covid-19 pandemic. second, while the elections were postponed until the pandemic ends, the acting officer, as another alternative, should be given full authority to the acting officer so that the government could be administered optimally. the study combined doctrinal and empirical legal research. the primary data sources were the laws and regulations relating to the regional head elections in indonesia and interviews from the election supervisory committee in surabaya, indonesia. this study showed that the simultaneous elections during the covid-19 pandemic could still avoid vacancies, and its implementation was adjusted to the pandemic situation. therefore, it implemented strict health protocols despite the more detailed and comprehensive-time simulations to adjust the overall implementation of the upcoming election stages. also, the internet infrastructure was prevalent to support the elections. finally, the government established the guidelines for regional head election based on the covid-19 health protocol. keywords: covid-19 pandemic, regional head election, regional head authority. copyright © 2021 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 10/06/2021 reviewed: 29/08/2021 revised: 18/09/2021 accepted: 19/09/2021 how to cite: nafiah, aniqotun & nur azizah hidayat, “covid-19 pandemic and simultaneous regional head elections in indonesia” (2021) 2:2 indonesian journal of law and society 145-164, online: <https://doi.org/10.19184/ijls.v2i2.24661>. 146 | covid-19 pandemic and simultaneous regional head elections in indonesia i. introduction coronavirus disease 2019 (covid-19) was first found in wuhan, china, in 2019.1 over time, the virus began to attack almost all countries in early 2020, including indonesia. the world health organization (who) announced on march 11, 2020, that this virus had been a pandemic.2 until may 27, 2021, there were 1,791,221 confirmed cases in indonesia and 167,951,168 confirmed cases across the globe.3 the rapid transmission of covid-19 endangers human health, which causes death.4 therefore, several countries implemented lockdown, and to a certain extent, the large-scale social restrictions as indonesia did. the large-scale social restrictions were directed in government regulation 21/2020 that handled the covid-19 outbreak.5 in practice, large-scale social restrictions limited almost all social activities, including the closure of worship places, schools, and universities. it also restricted several activities that were feared to cause crowds that resulted in the covid-19 transmission. this restriction was the government's effort to suppress the covid-19 transmission. consequently, it also harms all sectors. some of the sectors affected were the economy, education, tourism, sports, and government. in the government sector, the most public's concern had regional head election amid the covid-19 pandemic.6 1 bao-liang zhong, et al., “knowledge, attitudes, and practices towards covid-19 among chinese residents during the rapid rise period of the covid-19 outbreak: a quick online cross-sectional survey” (2020) 16:10 int j biol sci 1745–1752 at 16. 2 domenico cucinotta & maurizio vanelli, “who declares covid-19 a pandemic” (2020) 91:1 acta bio-medica atenei parm 157–160. 3 who, “who coronavirus (covid-19) dashboard | who coronavirus (covid-19) dashboard with vaccination data”, online: <https://covid19.who. int/>. 4 josé ricardo navarrro-vargas, “the covid-19 pandemic” (2020) 68:1 rev fac med 7–8 at 68. 5 dian herdiana, “implementasi kebijakan pembatasan sosial berskala besar (psbb) sebagai upaya penanggulangan corona virus disease 2019 (covid-19)” (2020) 2:2 decis j adm publik 14. 6 nila nargis & m iwan satriawan, “legal problems on regional head election during covid-19 pandemic in indonesia” (2021) 2:1 constitutionale 69–78. 147 | indonesian journal of law and society the government rescheduled the regional head election through government regulation in lieu of law 2/2020 until december 2020.7 this rescheduling was not realistic since the cases of covid-19 transmission in indonesia were increasing. this ineffectiveness emerged, so the election must also be postponed since the primary foundation stages have been postponed. it is necessary to be understood if it is impossible to hold elections according to the agenda contained in the law if the pandemic has not been entirely over.8 in this case, the government should first focus on handling the pandemic and equally strive for the people's welfare. however, the government inferred that regional head election could not be delayed in a long time because of the possible void position for regional heads in several regions. at the same time, the pandemic could not be ascertained when it would end.9 the vacancy of the position of the regional head during the pandemic has raised concerns as the regional governments need the upcoming leader to handle a crisis during a pandemic. it is one of the reasons why the regional head election must still be held even though the virus spread in indonesia is increasing. this study aimed to discuss the issue of the simultaneous regional head elections during the pandemic. it enquires to what extent the election's stages could remain held without crowds to anticipate the spread of covid-19. consequently, there is no void position for regional heads. first, replacing the conventional election stages using technology developed in industrial society 4.0 based on the internet of things (iot) temporarily (pandemic urgency) or with alternatives adapted to the pandemic situation. secondly, while the election is postponed until the pandemic ends, the acting officers as another alternative to replace the position of the regional head with the provision that the acting officers is given full authority to administer the government optimally. it aims to avoid the overlapping 7 putri hergianasari, “electoral distancing: alternatif penyelenggaraan pemilihan kepala daerah 2020 ditengah covid-19 di indonesia” (2020) 1:1 magistrorum sch j pengabdi masy 112–121. 8 david greacy geovanie, “urgensi penyelenggaraan pilkada pada masa pandemi covid-19 di indonesia” (2020) 1 j locus delicti 7. 9 aprista ristyawati, “efektivitas pelaksanaan pilkada serentak 2020 pada masa pandemi darurat covid-19 di indonesia” (2020) 2:2 crepido 85–96. 148 | covid-19 pandemic and simultaneous regional head elections in indonesia regulations of government regulation 21/2020 and the government regulation in lieu of law 2/2020. according to nandang alamsah deliarnoor, the purpose of referring acting officers in several regions is to replace the definitive regional head so that the government could remain working.10 however, the acting officers' authority is limited since they are not allowed to take strategic actions or policies as in article 132a government regulation 49/2008 of the third amendment to government regulation 6/2005 on the regional head election, ratification of appointments, and dismissal of regional heads and deputy regional heads (government regulation acting officers).11 the acting officers are not permitted to create the strategic policies. thus, it is feared that this could hinder the mayor's democracy in a region. another opinion by richard kennedy and bonaventura pradana suhendarto infer strategies to prevent the void position. some alternatives to fill regional head positions might be the solution, such as assigning the acting officers.12 nonetheless, kennedy also stated if the acting officers' assignation was not very efficient, considering they only had limited authority. it could not be optimal and efficient yet because the acting officers are not permitted to create the strategic policies. a new issue that emerged for several groups' debates is the draft revision of the election act of may 6, 2020. it stated that the 2021 indonesian house of representatives' priority regulating plans for regional head election was to be conducted in 2022 and 2023.13 the revised draft of the election law version of may 6, 2020, shows that regional head election, which was previously held in 2020, resulted in many conflicts. however, it did not 10 nandang alamsah deliarnoor, “problematika pelaksana tugas (plt) dalam masa transisi pemerintahan (pra dan pasca pilkada serentak)” (2017) 1:2 cosmogov 322. 11 ibid at 322. 12 richard kennedy & bonaventura pradana suhendarto, “diskursus hukum: alternatif pola pengisian jabatan kepala daerah di masa pandemi covid-19” (2020) 2:2 j pembang huk indones 188–204 at 2. 13 newsantara, “tahapan pemilu 2022, pilpres dan pileg 28 februari 2024 | newsantara.id”, online: <https://newsantara.id/2021/06/04/tahapan-pemilu-2022pilpres-dan-pileg-28-februari-2024/>. 149 | indonesian journal of law and society become a serious consideration taken by the government, the house of representatives, and the general election commission, while the covid-19 transmissions in indonesia were still high. therefore, a new study or research is needed to thoroughly discuss the polemics caused by regional head election during the pandemic. the main problem is to what extent the discourse on the regional head election during the covid-19 pandemic? to facilitate analysis and discussion, it has two main discussions. the first discussion provides an indepth overview of the crucial stages of regional head elections, including voter data verification and campaign issues during the covid-19 pandemic. the second discussion examines the implementation of the regional head election during the pandemic. ii. methods the research method combined doctrinal14 and empirical legal research methods. this method makes the legal research paradigm use other scientific approaches so that the legal issues discussed could be solved by remaining based on the norms and laws and regulations.15 the primary data sources were the laws and regulations relating to the regional head elections in indonesia and the results of interviews from the election supervisory committee of kenjeran district of surabaya and the election organizing group committee of tambak sari district, surabaya. the secondary data sources used theories, principles, dogmas, legal doctrines, and research from books, journal articles, news, research papers, and other relevant sources. 14 a’an efendi, dyah ochtorina susanti & rahmadi indra tektona, penelitian hukum doktrinal (laksbang justitia, 2019). 15 ahmad zuhdi muhdlor, “perkembangan metodologi penelitian hukum” (2012) 1:2 j huk dan peradil 189–206. 150 | covid-19 pandemic and simultaneous regional head elections in indonesia iii. crucial stages of regional head elections a. stages of voter data matching and voter data updating article 34(1) of law 10/2008 on elections outlines that the city/county's general election commission updates voter data based on population data from the government and local governments.16 in general, the process and research of voter data matching to the voters is carried out door to door by the voters list update committee.17 due to the knowledge and access of sub-district election committee and voting committee require the communication proximity with residents' representatives, such as the urban village head, neighborhood/hamlet head, or another personage in the urban village area.18 this approach is vital for mapping the distribution of voters in the voting place to match and examine the suitability of the permanent voter data in each voting place in the assigned urban village area.19 according to himawan estu bagijo, if the population data submitted by the government and local government to election organizers is accurate enough and political party officials at the urban village area and community levels play an active role in the voter data matching process, so they could get accurate the permanent voter data results.20 therefore, the stages of voter data matching and voter data updating must be carried out directly or door-to-door to get accurate results. however, in the current situation of the pandemic, the voter data matching process is impossible to do directly, considering that this will cause a crowd that would increase faster the covid-19 transmission. to avoid crowds, the voters list 16 indonesia, law 10/2008 concerning general election of members of the people’s representative council, regional representative council, and regional people’s representative council. 17 kpu yogyakarta, “coklit (pencocokan dan penelitian): apa dan bagaimana? – kpu diy”, online: <https://diy.kpu.go.id/web/coklit-pencocokan-dan-penelitianapa-dan -bagaimana/>. 18 ibid. 19 kpu kota palu, “coklit salah satu cara memutakhirkan data pemilih | kpu kota palu”, online: <https://kota-palu.kpu.go.id/coklit-salah-satu-cara-memutakhirkandata-pemilih/>. 20 himawan estu bagijo, “daftar pemilih tetap dan perlindungan hak pilih (kajian perundang-undangan dan keputusan mahkamah konstitusi)” (2010) 15:4 perspektif 335 at 4. 151 | indonesian journal of law and society update committee should try online voter data matching (maximizing the use of information and technology). the online voter data matching might not be done effectively, where voter data matching was always be done by going to people's homes previously. however, this online voter data matching aims to reduce the virus transmission rate, especially the covid-19 is mutating into the new vary. it is not easy to do online voter data matching due to the lack of experience in previous years. thus, it will take a long preparation time. however, some parties argue that implementing online voter data matching by the voters list update committee would also result in difficulty for voters with technology illiterate or who have no smartphone. to overcome this, general election commission and other committees should do socialization through leaflets and television media to socialize how to implement online voter data matching to avoid crowds. the voter data matching officers are prohibited from contacting voters. even if some voters do not have a smartphone, the voters list update committee still goes to the voters' house using personal protective equipment (ppe). it minimizes the occurrence of direct interaction. however, there is one important thing when the voter data matching process must be conducted online. it is only temporary to maintain the continuity of the simultaneous elections during the pandemic. the next stage of the regional head election is planned in 2022 in the condition of the pandemic, which could not be predicted when it will end. thus, maximizing the use of information and technology is essential to replace the conventional election stages, which require the strict covid-19 health protocol. b. requirements verification for the regional head candidate based on general election commission regulation 6/2020 of the third amendment to general election commission regulation 13/2019 about the stages, programs, and schedules for implementing the 2020 regional head election. several stages of regional head election must be carried out, one of which is verifying the regional head candidate done by the 152 | covid-19 pandemic and simultaneous regional head elections in indonesia city/county general election commission. one of the purposes of the regional candidate verification is to avoid manipulative practices. articles 40 and 41 of the regional head election law stated that there are two mechanisms for nominating regional head election, through a political party or coalition of political parties and independent. in the process of verifying the independent candidate, a different mechanism is needed from the political party. the stages of verification of the independent regional candidate are under some steps. first, check the terms of the amount of support and distribution.21 second, administrative verification.22 third, factual verification.23 fourth, submission of repair support requirements.24 fifth, verification of correcting administration.25 sixth, factual verification of repairs.26 of all the verification stages, it is necessary to have a direct meeting between the city/county general election commission and the parties for the regional head candidate. the candidate's data checking is essential to avoid invalid data, especially during the pandemic. prone to falsification of data for an independent candidate. one of the crucial processes in implementing independent candidate verification is the factual verification of support requirements for individual candidates.27 in the factual verification mechanism process, the city/county general election commission will use methods such as the population census.28 based on article 48 of the regional head election law, there are two types of verification. those are administrative 21 ahkam jayadi, “mekanisme verifikasi calon kepala daerah jalur perseorangan” (2020) 2:5. 22 ibid. 23 ibid. 24 ibid. 25 ibid. 26 ibid. 27 supriyadi supriyadi, “menakar nilai keadilan penyelenggaraan pilkada 2020 di tengah pandemi covid-19” (2020) 22:3 kanun j ilmu huk 493–514 at 22. 28 robiatun adawiyah, kajian kritis persyaratan pencalonan kepala daerah jalur perseorangan dihubungkan dengan pasal 18 ayat (4) undang-undang dasar 1945 sebagai upaya rekonstruksi pilkada demokratis (masters, uin sunan gunung djati bandung, 2017). 153 | indonesian journal of law and society verification and factual verification for three days using the census method. the factual verification process is carried out directly to each candidate's supporters who submit their id cards. while the supporters of the regional head candidates could not be found, they are allowed to present them at the voting committee office.29 the stage of the factual verification process for an independent candidate in the previous regional head election has generated many conflicts for some. it is considered too burdensome, especially during the pandemic. another problem arises when it requires voting committee officers to gather candidate's supporters in a forum, as stated in article 38(1) of general election commission regulation 6/2020. the census method carried out in factual verification would endanger the voting committee officers and supporters due to the spread of the covid-19.30 this mechanism could be against government regulation 21/2020 about the large-scale social restrictions because it causes public crowds. it is difficult to change the factual verification process using other alternatives in the current pandemic, especially online. however, urgency, such as the current pandemic, could be overcome through a health examination process. the candidate's determination is not carried out simultaneously, as explained in article 50c(1) and (5) of general election commission regulation 10/2020.31 other alternatives that could be used at this stage are: voting officers verify the factual support of the prospective individual candidate pair by implementing strict physical distancing protocols; the recapitulation support is carried out in stages starting from the voting officers to the provincial level using online media (maximizing the use of information and technology). the factual verification of revision support by voting officers is no longer door-to-door but by gathers supporters somewhere by doing the strict covid-19 protocol and limiting the number of supporter attendees or being carried out in stages to prevent transmission of the covid-19. 29 ibid. 30 supriyadi, supra note 27. 31 adawiyah, supra note 28. 154 | covid-19 pandemic and simultaneous regional head elections in indonesia c. stages of campaign political campaigns are one of the crucial agendas in pre-election. the campaign is a forum, and a means for candidates to conduct political communication with prospective voters. it makes this campaign activity mandatory at every political party. according to rogers and story campaign is a series of planned communication actions to create a particular effect on the general public, which is carried out continuously over a certain period.32 in its implementation, campaign activities are based on the persuasion principle by inviting and encouraging people to do or not do something voluntarily.33 mcquail and windahl stated that the campaign's target is the large part of the community who have knowledge, attitudes, and behaviors that could later be changed through these activities.34 the campaign's purpose is to gain support from the public with a large target audience. campaign activities in the current pandemic situation are not accessible. many aspects need to be considered so the campaign cannot create a new cluster in the transmission of the covid-19. it has been regulated, following general election commission regulation 5/2020 on the third amendment to the election commission regulation 15/2019 concerning the stages, programs, and schedules of the election of governors and deputy governors, regents, and deputy regents, and mayors and deputy mayors in 2020. under article 57 of general election commission regulation 6/2020, there are several changes in implementing the campaign. these include limited meetings, face-to-face meetings and dialogues, public debates or open debates between pairs of candidates, dissemination of campaign materials to the public, and installation of campaign props.35 32 fauzan ali rasyid, “kampanye politik dan persoalan bangsa” (2009) 25:2 mimbar 10. 33 ibid. 34 denis mcquail, audience analysis, 1st ed (sage publications ltd, 1997). 35 supriyadi, supra note 27. 155 | indonesian journal of law and society several legal issues have sparked polemics among indonesian people regarding campaign activities during the pandemic. the following is a cons list of several regional head election campaign activities in 2020 during a global pandemic (electronic media version). first; election campaign activities carried out by the candidates for mayor and deputy mayor of bukit tinggi, west sumatra, ramlan, and syahrizal. this activity is clearly against government regulation 21/2020 about the large-scale social restriction. second; a campaign held by supporters of the candidate pairs for the regent and deputy regent of ponorogo, east java, ipong muchlissoni, and bambang tri wahono overrides health protocols. even sympathizers from the two candidates held an art performance in front of the ponorogo regional general election commission office, attended by hundreds of supporters. then, several other legal issues regarding the election campaign amid the pandemic reaped cons from the public. the polemic that is commonly discussed is about being allowed to hold music concerts during the pandemic. whereas in government regulation 21/2020, it is clearly stated that all types of activities that cause crowds are not allowed. regarding the polemic, the general election commission has confirmed that the procurement of music concerts during the regional head election during this pandemic must pass several requirements. among them, the number of campaign participants could not be more than 50 people. all participants are required to apply health protocols to break the chain of spreading covid-19. however, the law and the appeal from the general election commission do not work as expected. the polemic on the legal issues above illustrates that there are still many people who ignore health protocols. it needs to be considered and reviewed by the government, the general election commission, and the election supervisory board in preparing for the next election stage. the transmission number of the covid-19 virus in indonesia is still very high. consideration and review could be accomplished by providing a clear emphasis on the existing laws and regulations. the regional head election campaign may repeat in the election campaign in the coming year. 156 | covid-19 pandemic and simultaneous regional head elections in indonesia in the next election, the indonesian government should learn from the success of south korea in holding elections during the covid-19 outbreak. as in south korea, the people vote through two methods; early voting and voting at the polling station.36 south korea also implemented strict health protocols so that the transmission rate of the covid-19 did not highly increase during the election. south korea replaces political campaigns differently. instead of gathering in massive rallies, the candidates campaign by cleaning public places in their neighborhood.37 this could be used as an example for other countries, especially indonesia, to preserve democracy and public health in the future. article 63(1) of the general election commission regulation 10/2020 has explained several provisions which are considered not violating the campaign provisions. hence, the general elections commission must amend the campaign provisions in general election commission regulation 5/2020 adjusted to the current pandemic conditions. one of which is implementing campaign activities done by south korea and the election commission regulations should impose strict sanctions, like the disqualification of violators as a deterrent effect. d. stages of voting and vote counting voting and counting refer to law 9/1999 on human rights, in which the constitution guarantees the right to vote for every citizen. voting is giving votes from voters to the candidate pairs or political parties of their choice. vote counting is the process of counting the voting results. both activities are carried out within one day; voting is in the morning, and vote-counting is in the afternoon up to evening. voting and counting votes are divided into three main activities: preparation, voting, counting of votes, and 36 kompas.com, “penjelasan dubes ri soal keberhasilan pemilu korsel di tengah pandemi”, online: <https://nasional.kompas.com/read/2020/10/21/09510551/ penjelasan-dubes-ri-soal-keberhasilan-pemilu-korsel-di-tengah-pandemi>. 37 voa indonesia. “korea selatan langsungkan pemilu di tengah pandemi corona”, online: <https://www.voaindonesia.com/a/korea-selatan-langsungkan-pemilu-ditengah-pandemi-corona-/5373580.html>. 157 | indonesian journal of law and society administration (filling in the minutes and other complete documents).38 in the preparatory stage, the activities started from receiving election logistics, distributing voter notification letters (model c6) to voters, and establishing a voting station. furthermore, the voting and counting process is carried out in stages and time determined by the voting organizing group. the third stage is administration. the administrative and vote counting process includes the official document (model c, model c1 plano, model c1 and its attachments, model c2, model c3, model c4, and model c5), attendance list, the announcement of the permanent voter data, additional voters list, list of voters special voters and other documents that the voting organizing group must fill out. all of the activities mentioned above require public space for their implementation, which means that these activities require election organizers and voters to interact directly. there is another alternative to carry out the voting stages and counting votes during this outbreak by e-voting or electronic voting. electronic voting is a method of voting and counting votes using electronic devices.39 the council of europe (coe) defines e-voting as an electronic voting device that can speed up data tabulation, reduce election costs, and contribute to preventing unauthorized voters.40 e-voting must have at least three mandatory parameters; convenience, flexibility, and mobility.41 evoting does not require a smartphone since, in the election process, voters could use the short message service (sms) application. it provides convenience for residents who do not have a smartphone or are constrained 38 masmulyadi, et al., serial evaluasi penyelenggaraan pemilu serentak 2019 perihal pemungutan dan penghitungan suara, 1st ed (badan pengawas pemilihan umum, 2019). 39 slamet risnanto, “aplikasi pemungutan suara elektronik/e-voting menggunakan teknologi short message service dan at command” (2017) 10:1 j tek inform at 10. 40 irham mulkan rodiana, budi rahardjo & w aciek ida, “design of a public key infrastructure-based single ballot e-voting system” (2018) 2018 int conf inf technol syst innov icitsi 2018 proc 6–9 at 6–9. 41 risnanto, supra note 39 at 10. 158 | covid-19 pandemic and simultaneous regional head elections in indonesia by the internet network in their area. in addition to sms, the voting organizing group provides an application on a smartphone for voters to directly submit their vote. the e-voting process is not an obstacle in implementing the regional head election amid the pandemic. along with the development of technology, many technical guidance activities are held by government agencies to upgrade the skills in the electronics field for employees, especially in the government sector. the voting organizing group officers could socialize through representatives of village officials, in this case, head of neighborhood or head of hamlet. they also can use leaflets, and even social media, considering that many people are more enthusiastic about everything is presented by several social media. the city/county general election commission could support the socialization of the e-voting system through television broadcasts. consequently, the dissemination of information could be received by the public quickly. suppose there are still difficulties in implementing electronic voting and vote counting. in that case, the general election commission may seek the following: first, limit the number of voters who enter the polling station (this has been done by several polling stations in the 2020 regional elections simultaneously). second, propose a mechanism for making a mobile voting station. this aims to avoid cluster elections due to crowds. third, make guidelines for voters at polling stations according to physical distancing rules. fourth, make guidelines of the voting station officers according to physical distancing rules. fifth, design the voting station standards by the covid-19 protocol. these efforts must be accompanied by clear and firm sanctions to prevent violations in the 2020 campaign activities. iv. implementing simultaneous elections during the covid-19 pandemic the postponement of the regional head election would result in a position void for regional heads in some regions. there needs to be a solution to fill the vacant position, so the ongoing wheels of government and development in the area keep running. one possible alternative is to use an indirect election system. indirect elections are not a new election 159 | indonesian journal of law and society pattern. this system has been used in the historical development of the regional head election in indonesia. indirect elections have been held since june 1, 2005. however, at that time, not all regions used this system due to the region's peculiarities. for example, at that time, the special region of yogyakarta (now known as diy) and dki jakarta.42 the governor determines the election process for the mayor and deputy mayor in the two regions. article 18(4) of the 1945 constitution regarding regional head election could be interpreted as direct elections by the people or indirect elections through regional people's representative council representation.43 previously, indirect elections were regulated in law 22/1999. however, the implementation of indirect elections was considered an injury to democracy because the people could not make their own choices. thus, the indirect regional election law was changed to direct regional election following law 1/2015 before finally being changed to the 2020 regional election law; the urgency of the pandemic. indirect elections could be used as an alternative to avoid a vacancy in the position of regional heads as long as the pandemic has not ended. besides that, indirect elections could also save state expenditures for the implementation of regional elections. the regional elections are not directly carried out through representatives of each region's regional people's representative council. in addition, the latest regional people's representative council elections were held in 2019 before the pandemic occurred. the indirect regional head election system is considered a reasonably effective way to do it. it does not create crowds during its implementation. many people may think that the indirect regional head election would cause many conflicts, especially regarding corruption. the public considers that the indirect election is prone to fraud because it is carried out without the people's knowledge, especially since the law has guaranteed the right to vote. 42 jawapos, “pilkada langsung dan tidak langsung”, online: <https://www.jawapos. com/opini/15/11/2019/pilkada-langsung-dan-tidak-langsung/>. 43 muhammad bahrul ulum, “how democracy is election? reassessing article 18 (4) of the 1945 constitution and its implication to the regional head election in indonesia” (2019) 8:2 j huk dan peradil 315. 160 | covid-19 pandemic and simultaneous regional head elections in indonesia discourse on indirect elections was conveyed by the minister of home affairs tjahjo kumolo with the chairman of the 2019 indonesian house of representatives, bambang soesatyo. they stated that indirect elections have advantages such as low political costs. in addition, money politics does not extend to the community base, and the people do not experience extreme divisions socially or politically.44 however, reverted to the people's poll, regional head election is not considered an unfair form of democracy. another alternative to replacing simultaneous regional elections during the pandemic is the appointment of acting officers. previous research stated that acting officers' appointment as a replacement for the regional head was considered ineffective because the acting officers had only limited authority. also, they could not take strategic policies, stated in article 132a of government regulation 49/2008. however, there are some alternatives. first, amend the local government law, which regulates the authority of the acting officers. second, people could suggest their laws in purpose. the law in question could be explicitly made or incorporated into other law-level regulations whose discussion topics do not deviate from the regulations of the acting officers. based on the analysis results above, the alternative of filling the vacant position of regional heads through the regional head election and the indirect regional head election has its respective advantages and disadvantages. choosing acting officers as a substitute for regional heads who are in transition is more effective. the appointment of the acting officers does not harm indonesia's political democracy as the implementation of indirect elections. indonesia is a democratic country. thus indirect elections are no longer effective if it is re-implemented. 44 okezone, “wacana pilkada tidak langsung, ini kelebihan dan kekurangannya”, online: <https://nasional.okezone.com/read/2018/04/10/337/1884413/wacanapilkada-tidak-langsung-ini-kelebihan-dan-kekurangannya>. 161 | indonesian journal of law and society v. conclusion the simultaneous elections during the covid-19 pandemic were held in indonesia as part of the democratic cycles despite avoiding the vacancies at the regional levels. its implementation was adjusted to the pandemic situation, and several aspects considered the election in this pandemic. first, the government strived to implement the health protocols as standardized by the who strictly. second, it prepared more detailed and comprehensive-time simulations to adjust the overall implementation of the election stages. third, the government ensured the internet infrastructure throughout the region by facilitating offline and online meetings. fourth, it created new guidelines for all stages of the regional head election based on the covid-19 health protocol. while the election is postponed until the pandemic ends, the government may take an alternative by applying acting officers in lieu of the current regional heads. in doing so, the acting officers could run the government with full authority by firstly required to amending the existing regional government law. acknowledgments none. references adawiyah, robiatun, kajian kritis persyaratan pencalonan kepala daerah jalur perseorangan dihubungkan dengan pasal 18 ayat (4) undangundang dasar 1945 sebagai upaya rekonstruksi pilkada demokratis (masters, uin sunan gunung djati bandung, 2017). bagijo, himawan estu, “daftar pemilih tetap dan perlindungan hak pilih (kajian perundang-undangan dan keputusan mahkamah konstitusi)” (2010) 15:4 perspektif 335. cucinotta, domenico & maurizio vanelli, “who declares covid-19 a pandemic” (2020) 91:1 acta bio-medica atenei parm 157–160. 162 | covid-19 pandemic and simultaneous regional head elections in indonesia deliarnoor, nandang alamsah, “problematika pelaksana tugas (plt) dalam masa transisi pemerintahan (pra dan pasca pilkada serentak)” (2017) 1:2 cosmogov 322. efendi, a’an, dyah ochtorina susanti & rahmadi indra tektona, penelitian hukum doktrinal, 1st ed (laksbang justitia, 2019). geovanie, david greacy, “urgensi penyelenggaraan pilkada pada masa pandemi covid-19 di indonesia” (2020) 1 j locus delicti 7. herdiana, dian, “implementasi kebijakan pembatasan sosial berskala besar (psbb) sebagai upaya penanggulangan corona virus disease 2019 (covid-19)” (2020) 2:2 decis j adm publik 14. hergianasari, putri, “electoral distancing: alternatif penyelenggaraan pemilihan kepala daerah 2020 ditengah covid-19 di indonesia” (2020) 1:1 magistrorum sch j pengabdi masy 112–121. jawapos, “pilkada langsung dan tidak langsung”, online: <https://www. jawapos.com/opini/15/11/2019/pilkada-langsung-dan-tidaklangsung/>. jayadi, ahkam, “mekanisme verifikasi calon kepala daerah jalur perseorangan” (2020) 2 5. kennedy, richard & bonaventura pradana suhendarto, “diskursus hukum: alternatif pola pengisian jabatan kepala daerah di masa pandemi covid-19” (2020) 2:2 j pembang huk indones 188–204. kompas.com, “penjelasan dubes ri soal keberhasilan pemilu korsel di tengah pandemi”, online: <https://nasional.kompas.com/read/2020/ 10/21/09510551/penjelasan-dubes-ri-soal-keberhasilan-pemilukorsel-di-tengah-pandemi>. kpu kota palu, “coklit salah satu cara memutakhirkan data pemilih | kpu kota palu”, online: <https://kota-palu.kpu.go.id/coklit-salahsatu-cara-memutakhirkan-data-pemilih/>. kpu yogyakarta, “coklit (pencocokan dan penelitian): apa dan bagaimana? – kpu diy”, online: <https://diy.kpu.go.id/web/coklitpencocokan-dan-penelitian-apa-dan-bagaimana/>. 163 | indonesian journal of law and society masmulyadi, et al., serial evaluasi penyelenggaraan pemilu serentak 2019 perihal pemungutan dan penghitungan suara, 1st ed (badan pengawas pemilihan umum, 2019). mcquail, denis, audience analysis, 1st ed (sage publications ltd, 1997). muhdlor, ahmad zuhdi, “perkembangan metodologi penelitian hukum” (2012) 1:2 j huk dan peradil 189–206. nargis, nila & m iwan satriawan, “legal problems on regional head election during covid-19 pandemic in indonesia” (2021) 2:1 constitutionale 69–78. navarrro-vargas, josé ricardo, “the covid-19 pandemic” (2020) 68:1 rev fac med 7–8. newsantara, “tahapan pemilu 2022, pilpres dan pileg 28 februari 2024, online: <https://newsantara.id/2021/06/04/tahapan-pemilu-2022pilpres-dan-pileg-28-februari-2024/>. okezone, “wacana pilkada tidak langsung, ini kelebihan dan kekurangannya : okezone nasional”, online: <https://nasional. okezone.com/read/2018/04/10/337/1884413/wacana-pilkada-tidaklangsung-ini-kelebihan-dan-kekurangannya>. rasyid, fauzan ali, “kampanye politik dan persoalan bangsa” (2009) 25:2 mimbar 10. risnanto, slamet, “aplikasi pemungutan suara elektronik/e-voting menggunakan teknologi short message service dan at command” (2017) 10:1 j tek inform. ristyawati, aprista, “efektivitas pelaksanaan pilkada serentak 2020 pada masa pandemi darurat covid-19 di indonesia” (2020) 2:2 crepido 85–96. rodiana, irham mulkan, budi rahardjo & w aciek ida, “design of a public key infrastructure-based single ballot e-voting system” (2018) 2018 int conf inf technol syst innov icitsi 2018 proc 6– 9. 164 | covid-19 pandemic and simultaneous regional head elections in indonesia supriyadi, supriyadi, “menakar nilai keadilan penyelenggaraan pilkada 2020 di tengah pandemi covid-19” (2020) 22:3 kanun j ilmu huk 493–514. ulum, muhammad bahrul, “how democracy is election? reassessing article 18 (4) of the 1945 constitution and its implication to the regional head election in indonesia” (2019) 8:2 j huk dan peradil 315. voa indonesia, “korea selatan langsungkan pemilu di tengah pandemi corona”, online: <https://www.voaindonesia.com/a/korea-selatanlangsungkan-pemilu-di-tengah-pandemi-corona-/5373580.html>. who, “who coronavirus (covid-19) dashboard | who coronavirus (covid-19) dashboard with vaccination data”, online: <https://covid19.who.int/>. zhong, bao-liang, et al., “knowledge, attitudes, and practices towards covid-19 among chinese residents during the rapid rise period of the covid-19 outbreak: a quick online cross-sectional survey” (2020) 16:10 int j biol sci 1745–1752. microsoft word 23433 edited for publish.doc indonesian journal of law and society (2020) 1:2 199-218 issn 2722-4074 | https://doi.org/10.19184/ijls.v1i2.23433 published by the university of jember, indonesia available online 20 october 2020 _____________________________ * corresponding authors’ e-mail: misbahulilham313@gmail.com compensation arrangements in expropriating goods and equipment: an indonesian experience misbahul ilham* university of jember, indonesia bhim prakoso university of jember, indonesia ermanto fahamsyah university of jember, indonesia abstract. after the change of oil and gas production sharing contract scheme in 2017, the expropriation of goods and equipment has become the main clause in the production sharing contract (psc) contract. as a substantial production subsidiary, oil and gas exploitation is controlled by psc. this paper aimed to examine the psc contract, oil and gas law, and upstream oil and gas business ordinance to expropriate goods and equipment. the psc outline contains ownership of natural resources, the working area of oil and gas operations, oil and gas reserves, capital, and sophisticated supporting goods and equipment. however, the problem in the contract dealt with the ownership of goods and equipment purchased by the contractor. the cooperation contract regulated that goods that support oil and gas operations were included in the category of state property without compensation. the provisions in the contract tended to be detrimental to the contractors who have carried out the exploration stage but did not find oil and gas reserves until the specified time limit. this paper used normative legal research to analyze the regulation of clause the expropriation of goods and equipment and statute approach to explore the clause from various regulations. the result showed the acquisition of ownership of goods and equipment in the psc, upstream oil and gas business regulation was not regulating the compensation arrangements. keywords: natural resources law, upstream activities, compensation arrangements. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions submitted: 10/09/2020 reviewed: 12/09/2020 revised: 15/10/2020 accepted: 16/10/2020 200 | compensation arrangements in expropriating goods and equipment: an indonesian experience i. introduction natural resource management of oil and gas generates enormous returns from their production, critical to a global resource-led political economy development. for countries with enormous natural resources such as indonesia, venezuela, and saudi arabia, they experience economic and controlling stagnation or difficulties.1 thus, indonesia’s dependence on oil and natural gas is relatively high due to a large amount of natural wealth.2 the oil and gas industry has experienced significant volatility in the last five years, both in indonesia and globally,3 caused by global geopolitical and economic considerations playing a significant role in driving the oil and gas industry. currently, indonesian people are also requisite for oil and gas products considered from increased petroleum consumption, domestic energy, and industrial raw materials.4 by taking into account the enormous need for oil and gas products, indonesia sets control of oil and gas by the state. however, the right to control owned by the state must also consider the products that must aim at the community's welfare. managing the oil and gas industry is high risk due to the dwindling supply of nature and the high cost of procuring and refining resources. the state in the production of oil and natural gas has the function to regulate and manage natural wealth such as land, water, and other natural resources. the constitutional content in the economic sector must be structured as a joint effort based on the principles.5 in addition, the production branches, which are essential and have a bearing on the livelihood of the people, are 1 genio ladyan finasisca , tri hayati, “domestic beneficiation policy in mining sector : a case study of indonesia” (2020) 7:07 j crit rev, online: <http://www.jcreview. com/fulltext/197-1588918536.pdf?1589182258>. 2 alan gelb, benn eifert & borje nils tallroth, the political economy of fiscal policy and economic management in oil-exporting countries, policy research working papers (the world bank, 2002). 3 fourina permatadewi, “oil and gas in indonesia investment and taxation guide 2018” at 152. 4 ana fitriyatus sa’adah, akhmad fauzi & bambang juanda, “peramalan penyediaan dan konsumsi bahan bakar minyak indonesia dengan model sistem dinamik” (2017) 17:2 j ekon dan pembang indones at 118–137. 5 ibnu sina chandranegara, “desain konstitusional hukum migas untuk sebesarbesarnya kemakmuran rakyat” (2017) 14:1 jurnal konstitusi at 45. 201 | indonesian journal of law and society directly controlled by the state on the condition that they are used maximally for the prosperity of the people. under the current contract, the government appointed the company as a contractor in a licensed area.6 in the current condition, oil and gas investment return sharing scheme in the cooperation contract is divided into two. they are psc cost recovery (psc cr) and psc gross split (psc gs).7 the cost recovery scheme is that the state will reimburse all costs related to oil and gas revenues, then the oil and gas proceeds will be given to the state with a larger portion with a distribution range of 85% for the state and 15% for contractors.8 meanwhile, the gross split scheme states that the contractor bears all costs related to the acquisition of oil and gas, then the contractor will get a more significant share of the revenue from oil and gas, the scheme can be 57% for the state and 43% for the contractor.9 several implementing regulations state that all goods and equipment purchased by contractors in implementing petroleum operations become state property and are managed by the special task force for upstream oil and gas business activities.10 the regulations in question are government regulation 35/2004, government regulation 27/2017, government regulation 53/2017, minister of finance regulation 89/pmk.06/2019, minister of finance regulation 02/pmk.05/2011 and minister of energy and mineral resources regulation 8/2017. the government's treatment of goods and equipment that should belong to the contractor and directly 6 dwi atty mardiana, fadhlia, ridha husla, rs trijana kartoatmodjo, “assessing indonesia’s upstream petroleum fiscal regimes choices” (2019) 8:11 int j sci technol res, at 2449. 7 buletin skk migas, “membuka harapan baru dari skema gross split” (2017) 24. 8 hari sutra disemadi & sahuri lasmadi, “utilizing production sharing contracts (pscs) as a means for the protection of indonesia’s natural resources” (2019) 6:3 lentera hukum at 393. 9 hari sutra disemadi & sahuri lasmadi, “utilizing production sharing contracts (pscs) as a means for the protection of indonesia’s natural resources” (2019) 6:3 lentera hukum at 393. 10 duwi s ariyani, “penataan barang milik negara beleid aset hulu migas bikin rumit birokrasi”, koran bisniscom (oktober 2017), online: <https://koran.bisnis.com/read/ 20171013/451/698733/penataan-barang-milik-negara-beleid-aset-hulu-migasbikin-rumit-birokrasi>. 202 | compensation arrangements in expropriating goods and equipment: an indonesian experience states that the goods that have been used in oil and gas operations in their working area belong to them. this research examined the government's arrangement of the expropriation of contractor goods and equipment. the compensation arrangement in oil and gas law must follow government regulation 35/2004 on upstream oil and gas business activities and the cooperation contract. the first section of this paper will discuss the legal and regulatory framework of the upstream oil business contracts in indonesian experience from it is beginning until the shift of the current scheme. the second and third discussions will elaborate on the expropriation of ownership of goods and equipment and the compensation after the current alteration scheme. ii. methods this research uses normative legal analysis to examine the legal framework of upstream oil and business activities to explore problems by looking at norms and their application, and a conceptual method to analyze doctrine and legal views as material for solving problems. the legal sources used consist of primary legal materials, secondary legal materials, and non-legal materials. iii. legal and regulatory framework of the upstream oil business contracts a. legal aspect of upstream oil contracts oil and gas business activities are conditional on investment activities with significant capital, thus to facilitate the legal relationship between the owners of capital and the recipients of capital, a contract called a cooperation contract is formed.11 under article 1:14 of the oil and gas law, the contract is interpreted as a production sharing contract or other cooperation contracts in exploitation and exploration activities that are more profitable for the state. the results are used for people’s prosperity. it 11 sulaiman, “rekonstruksi hukum minyak dan gas bumi yang berkeadilan di indonesia” (2016) 18:2 kanun journal ilmu hukum at 221. 203 | indonesian journal of law and society indicates other types of contracts other than production sharing contracts whose existence is still recognized. although indonesia has made changes two times, the cooperation system changes in the upstream oil and gas business activities. cooperation contracts are still expected to be a tool for the government to improve relations with investors in managing the upstream oil and gas business. another objective is to assure accountable processing, transport, storage, and commercial businesses through fair and transparent business competition. it includes guaranteeing the efficient and effective supply of oil and gas as a source of energy and meeting domestic needs, promoting national capacity, increasing state income, and enhancing public welfare and prosperity equitably while maintaining the conservation of the environment. b. concession system for upstream oil contracts this system has been in effect during the era of the dutch east indies government. in this system, mining companies that can manage oil and gas mining are given mining rights and control over land. the contractor has full control over the oil being mined, and the contractor is obliged to pay royalties to the state. howard r williams and charles j meyer12 in the manual of oil and gas terms provide an understanding that the concession system is: "an agreement (usually from host government permitting a foreign petroleum company to prospect for and produce oil in the area subject to the agreement.) the terms ordinarily include a time limitation and provision for royalty to be paid to the government.” the concession referred to above is defined as an agreement between the state that owns or holds the oil and gas mining authority and the investor, whereby the investor will get the right to explore and, if successful, produce and market oil and natural gas without involving the concession-giving country and its management. 12 howard r williams, patrick h martin, charles j meyers, manual of oil and gas terms: annotated manual of legal, engineering and tax words and phrases, 17th edition ed (lexisnexis). 204 | compensation arrangements in expropriating goods and equipment: an indonesian experience according to a madjedi hasan 13 several provisions in the concession system can be described as the patterns and conditions contained in the concession system, namely: exclusive rights to the concession holder for a certain time (75 years) to carry out exploration and exploitation of petroleum; and the right to sell it including by-products (refined) produced from the concession area. in this concession system, the land given varies but is generally very broad and the rights granted to concessionaires are almost unlimited and full of excessive privileges. the payment for the concession shall only be in the form of royalty payments (based on production volume at a fixed rate). concession holders are not subject to income tax. ownership of oil and gas resources based on the concession system is right in rem, which can be used as collateral. rightsholders will become owners as soon as these resources are produced. the government is not involved in the ownership of the management of operational activities other than receiving royalty payments and other levies. the relationship between the host country and the company at the start of the concession system allowed the company to impose asymmetrical conditions on the host.14 with this concession system, the state as the owner of natural resources gives the right to seek, develop, and export to a company (generally a foreign company) freely from a vast area for an extended period in exchange for a certain amount of payment and other benefits. thus, the government only has the right to receive commercial uses, which initially take the form of royalties and turn into royalties and taxes. c. contract of work for upstream oil contracts the implementation of the contract of work has been in effect from 1960 to 1963. this system was built for oil and gas mining companies only to be given the power to the government so that the contractor pays a tax of 56% 13 a madjedi hasan, “kontrak pertambangan minyak dan gas bumi, (training on the law of energy and mineral resources)” in (faculty of law, universitas indonesia, 2010) at 20. 14 ibid. 205 | indonesian journal of law and society directly to the government. besides that, the generally accepted accounting procedure (gap) needs to be applied for which the restriction on operating costs (cast recovery calling) is 40% and has been removed. the definitive work contract is outlined in article 1 of the decree of the minister of mining and energy 1409.k/201/m.pe/1996 on the procedures for processing applications for the granting of mining rights, principle permits, work contracts, and work agreements for coal mining companies (pkp2b). that is; an agreement between the indonesian government and a foreign private company or a joint venture between foreign and national for exploitation of natural resources in the form of minerals.15 the definition above constructs a work contract as an agreement. the subjects in the agreement are the government and foreign companies in a joint venture between foreign and national companies. ismail sunny16 stated that in the implementation of a work contract, it refers to as foreign capital cooperation in the form of a work contract which occurs when a foreign investment forms an indonesian legal entity and this legal entity enters into cooperation with a legal entity that uses national capital. meanwhile, sri woelan azizi has a different meaning that the contract of work is in the presence of a collaboration in which a foreign party forms an indonesian legal entity. this indonesian legal entity cooperates with an indonesian legal entity that uses indonesian capital.17 salim defines a work contract as an agreement made between the indonesian government and foreign contractors solely and/or is a joint venture between a foreign legal entity and a domestic legal entity to carry out exploration and exploitation activities in the field.18 general mining, according to the time frame agreed by both parties. the work contract 15 jennifer mckay & balbir bhasin, “mining law and policy in indonesia: issues in current practice that need reform” (2001) 19:4 j energy nat resour law at 329–343. 16 ratnasari fajariyah abidin, “aspek yuridis renegosiasi kontrak karya di indonesia (studi kontrak karya antara pemerintah republik indonesia dengan pt.freeport indonesia)” (2018) 11:01 al-risal at 19. 17 ibid. 18 salim hs, hukum pertambangan mineral dan batubara (jakarta: sinar grafika, 2014). 206 | compensation arrangements in expropriating goods and equipment: an indonesian experience regulates the legal relationship between the parties and governs the object of the work contract. in general, the elements of a work contract are a contractual (agreement made by the parties), legal subject, the existence of objects, general mining, and term in the contract. d. cooperative contract for upstream oil contract cooperation contracts that foreign private companies with the government have executed have a broad impact on society.19 the positive consequences of the cooperation contract are job opportunities and technology transfer. article 1 of the oil and gas law confirms the definition of a cooperation contract, namely: "cooperation contracts are production sharing contracts or other forms of cooperation contracts in exploration and exploitation activities that are more beneficial to the state and the results are used for the greatest prosperity of the people." production sharing contracts translate the cooperation contracts in the oil and gas law and several other laws and regulations. permanent establishment. production sharing contracts have been implemented in indonesia since 1964. production sharing contracts (pscs) were born at that time to overcome the problems of limited domestic capital, technology, and human resources faced in oil and gas operations.20 iv. the expropriation for upstream oil and gas business contractors the regulation of goods and equipment is regulated in cooperation contracts and various laws and regulations relating to upstream oil and gas business activities. the business entity in the cooperation contract is referred to as the cooperation contract contractor as one of the parties interested in goods and equipment to support oil and gas exploration and exploitation activities. in its operation, the cooperation contract 19 law 22/2001 on oil and natural gas. 20 rudi m simamora, hukum minyak dan gas bumi (jakarta: djambaran, 2000) at 271. 207 | indonesian journal of law and society contractor requires supporting goods and equipment in one way, namely buying the supporting goods and equipment. the initial stage in the contract agreement between the state and the cooperation contract contractor has general rights in oil and gas activities. the state has a working area, oil and gas reserves, and ex-terminated bmn. cooperation contract contractors as investors must have financial, human resources (hr), and technology. the number of capital assets (ca), investment assets (ia), limited inventories, seismic material and wells, ground wells, and office equipment at the exploration stage.21 significant additions to ca, ia, and supplies in production facilities and equipment, wells, supply materials, offices, and housing. until the final stage, namely the termination of the contract by significantly reducing ca, ia, and inventories by returning to the state.22 the clauses in the psc contract (production sharing contract) and article 78 of government regulation 35/2004 concerning upstream oil and gas business activities. "all goods and equipment that are directly used in the upstream oil and gas business activities purchased by the contractor become state property/assets whose development is carried out by the government and managed by the executing agency." in addition, it is regulated in article 3 of pmk 89/pmk.06/2019 on the management of state property originating from the implementation of cooperation contracts for upstream oil and gas business activities, which states: "goods purchased or obtained through the import process for use or intended for use by contractors in the implementation of upstream oil and gas business activities are state property owned by oil and gas after landing at seaports, airports or other places. the purchased goods have fulfilled the customs obligations of the imported destination under the statutory regulations. there is a difference regarding the goods that will become bmn of imported oil and gas and those that are not imported. this status is deemed essential to ensure that the 21 dr grace li, “the prc contract law and its unique notion of subrogation” (2009) 4:1 at 10. 22 ibid at 12. 208 | compensation arrangements in expropriating goods and equipment: an indonesian experience goods that will become bmn oil and gas originate from abroad or domestically." in general, goods are part of state assets which are specific units that can be valued, counted, measured, and weighed. meanwhile, state-owned goods are defined in article 1:1 of government regulation 27/2014 on management of state/regional property. all goods purchased or obtained at the expense of the state budget or originating from other legitimate acquisitions, excluding money and securities. thus, the state, provinces, regencies/municipalities as state institutions have property rights and other rights proportionally and under the principles of limitation and conditions stipulated in statutory regulations. likewise, individual legal subjects and civil legal entities. public legal entities can sell, rent, utilize and or manage the goods they own.23 the definition of state property (abbreviated as sp) is also stated in article 1:3 of minister of finance regulation no. 171/pmk.05/2007 on central government financial accounting and reporting system which outlines: "bmn is all goods purchased or obtained at the expense of the state budget or derived from legitimate acquisitions. the classification of goods referred to above is tangible goods that can be assessed, counted, measured, and weighed, excluding money and securities." goods and equipment in oil and gas operations are categorized as stateowned goods obtained from other legal acquisitions according to article 2:2 of the government regulation 27/2014 on the management of state property. among others, goods obtained from a gift/donation or the like, goods obtained as an implementation of an agreement/contract, goods received under the provisions of law, or goods received based on a court decision that has acquired permanent legal force. bmn managers who have the authority to regulate and manage sp. it is the minister of finance as general treasurer of the state that becomes the manager of state property authorized and responsible for the regulation and implementation of policies relating to bmn management. 23 mckay & bhasin, "mining law and policy in indonesia," supra note 15. 209 | indonesian journal of law and society the legal position in regulating the ownership of goods and equipment for upstream oil and gas business activities is used as the basis for determining the position where a legal subject or legal object is placed. it has the function and purpose of carrying out an activity allowed and not allowed in the cooperation contract. special work unit for upstream oil and gas business activities (skk migas) is authorized by the state as a substitute for the implementing body.24 the executing agency is an agency established to exercise control in the upstream oil and gas business activities. as the holder of the power, the state delegates based on article 4 of the oil and gas law, which regulates that the government with mining rights forms an executing agency.25 the authority of the executing agency in this activity is to supervise the upstream oil and gas business activities in and throughout the areas described and described in the contract. the cooperation contract contractor in the said contract must have the financial capacity, technical skills, and expertise needed to carry out petroleum business under the clauses in the cooperation contract.26 control over oil and gas refers to the constitutional basis which delegates the authority to control (in the sense of exploiting and managing) important production branches (oil and gas) and controlling the livelihood needs of many people to the state and can be delegated to business entities in the form of permanent businesses. the state's position as the holder of power rights is due to the sovereignty of its natural resources. its control must be a priority to be of great value to the people's livelihoods.27 oil and gas is a significant production, meaning that the oil and gas content in the land is very close to the products that people need from oil and gas production. as an essential and strategic production branch, the oil and gas sector has a different meaning from other countries, namely malaysia. 24 affina niken al-islami, “legalitas kontrak kerjasama minyak dan gas bumi pada organisasi dan tata kerja satuan kerja khusus pelaksana kegiatan usaha hulu minyak dan gas bumi”,p 21. 25 m ilham f putuhena, “politik hukum pengelolaan hulu migas pasca putusan mahkamah konstitusi” (2015) 4:2 at 17. 26 brigita p manohara, ahmad redi, “new oil and gas regulations in indonesia to prevent corruption in upstream sector” (2020) 7:08 j critical review at 759. 27 putuhena, supra note 25. 210 | compensation arrangements in expropriating goods and equipment: an indonesian experience malaysia in the petroleum act 28defines that ownership of oil and gas as an essential branch is not allowed to be transferred or controlled by the private sector. act 144 petroleum development act 1974. the entire ownership in, and the exclusive rights, powers, liberties, and privileges of exploring, exploiting, winning, and obtaining petroleum whether onshore or offshore of malaysia shall be vested in a corporation to be incorporated under the companies act 1965 or under the law relating to the incorporation of companies. malaysian law 144/1954 on oil and petroleum development that all ownership in terms of exclusive rights, powers, freedoms, and privileges to explore, exploit, win and obtain petroleum either on land or off the coast of malaysia will be given to a corporation to be incorporated under the companies act 1965 or under the laws relating to the incorporation of companies. the entire ownership of the exploration and exploitation of oil and gas in malaysia, both on land and at sea, is transferred to a national corporation established under the companies act. meanwhile, in indonesia, the interpretation is different, when the constitutional court hearing on 29 april 2010 29stated that "what is important for the state is not only that it has a strategic role, but also controls the lives of many people and this management can be managed by the private sector." the state is given the task and authority to make policies (beleid), management (bestuutsdaad), regulation (regelended), management (beheersdaad), and supervision (toezichthoudendsdaad) over control of a production branch (oil and gas).30 indonesia strictly regulates the state's position over control of oil and gas as an essential and strategic production branch controlled by the state. it has meaning in its practice, whether the state regulating oil and gas 28 petroleum development act, 144 1974. 29 putuhena, supra note 25. 30 lalang tri utomo, achmad busro, ery agus priyono, “aspek hukum penerapan asas kekuatan mengikat dalam kontrak bagi hasil minyak dan gas bumi di indonesia” 5:4 dipenogoro law j at 3. 211 | indonesian journal of law and society management plays a role in public law subjects (jury imperii) or civil law subjects (jury gestiones).31 the parties' position becomes unbalanced with the state's position as the perfect subject. the state can change laws and prosecute legal subjects who break the law as an ideal legal subject. the concept of jury gestiones defines that the state as a subject of civil law is considered to have abandoned immunity to its sovereignty in connection with its actions in business activities.32the substance of the contract is inappropriate because it contradicts the concept of ownership which is intended for the most significant benefit of the people.33 based on the explanation above, the state's legal position in this cooperation contract becomes the legal relationship between the first party as a sovereign state and the second party as a cooperation contract contractor. such profits must aim at the maximum possible welfare of the community. v. the compensation arrangements of upstream oil and gas business contractors the disadvantages can be defined as a real loss that occurs because of default.34 the amount of the loss is determined by comparing the state of assets after default with the situation if there was no default. m. yahya harahap also interpreted more or less the same, namely compensation is defined as the real loss or "fletelijke nadeel" caused by the act of default.35 abdulkadir muhammad emphasized that articles 1243 to 1248 of the 31 huala adolf, dasar dasar hukum kontrak internasional (bandung: refika aditama, 2008) at 5. 32 sang ayu putu rahayu, “prinsip hukum dalam kontrak kerjasama kegiatan usaha hulu minyak dan gas bumi” (2017) 32:2 yuridika at 333. 33 maulana arba’ satryadin, ery agus priyono & budi gutami, “penerapan asas proporsionalitas dalam production sharing contract pada kegiatan usaha pertambangan hulu minyak dan gas bumi” (2016) 5 at 18. 34 r setiawan, pokok pokok hukum perikatan (bandung: binacipta, 1977) at 17. 35 m yahya harahap, segi segi hukum perjanjian (bandung: alumni, 1982) at 66. 212 | compensation arrangements in expropriating goods and equipment: an indonesian experience civil code constitute a legal against debtors from arbitrary actions by the creditor due to default.36 nieuwenhuis broadly puts forward the term loss regarding the decrease in the assets of one party, which is caused by an act that violates the norm by the other party. nieuwenhuis added that care must be taken to not cause harm as a difference between the situation before and after default or illegal acts.37 it is also essential to pay attention to the elements of compensation as stated in article 1246 of the civil code: "costs, losses, and interest that the debtor may be sued for compensation generally consist of the losses he has suffered and the gains that he should enjoy, without prejudice to the exceptions and changes that will be mentioned below." according to abdul kadir muhammad, the following elements of compensation can be drawn by the cost, losses due to damage, and expected interest or profit.38 satrio considers more specifically that the elements of compensation are a substitute for the performance obligation of the engagement, part of the primary engagement obligations, such as improper performance.39 the compensation for losses suffered by creditors due to overdue performance is demanded to compensate for the principal performance obligations of the engagement and compensation for the delay. regulations related to goods and equipment are not only regulated in the oil and gas cooperation contract, but several regulations also stipulate the same thing. provisions regarding goods are regulated from articles 78 to 81 chapter ix utilization of domestic goods, services, technology and engineering and design capabilities in government regulation 35/2004 on upstream oil and gas business activities. 36 abdul kadir muhammad, hukum perikatan (bandung: citra aditya bakti, 1990) at 41. 37 jh nieuwenhuis, pokok pokok hukum perikatan (airlangga university press, 1985) at 54. 38 abdul kadir muhammad, supra note 21 at 76. 39 j satrio, hukum perikatan (perikatan pada umumnya) (bandung: alumni). 213 | indonesian journal of law and society managing goods and equipment includes physical and administrative activities ranging from storage, maintenance, release and delivery, recording, and reporting to meet needs and ensure the smooth operation of petroleum in the working area.40 contractors using a psc gs scheme must maintain and maintain documents related to the acquisition, maintenance, replacement, modification, and ownership of these goods and equipment according to the provisions that are still in effect while they are still in the upstream oil and gas business activities.41 the objective of asset management in the form of goods and equipment from upstream oil and gas business activities is effective, efficient, and transparent based on the principles of accountability under the provisions and laws in force to provide maximum benefits to the state while still prioritizing the prosperity and welfare of the people.42 the form of management of goods and equipment originating from the assets of a cooperation contract contractor, namely through the existence of a special arrangement from the minister of finance regulation 135/pmk.06/2009 on management of state property derived from cooperation contract contractors. the general principle in the above regulation regulates that state property (bmn) is state assets that will later be used and acquired or purchased by the cooperation contract contractor to implement the contract between the republic of indonesia and the cooperation contract contractor.43 goods and equipment categorized as asset contractors in a cooperation contract are regulated in article 2(1) and (2) of ministry of finance regulation 135/pmk.06/2009, which governs the position of goods and determination of their status. 40 skk migas, “in 2013, role of badan pelaksana, including signing of coorperation contract, is transferred to satuan kerja khusus pelaksana kegiatan usaha hulu minyak dan gas bumi (skk migas)” at 58. 41 amir hosein mabadi, legal strategies in upstream oil and gas contracts to attract foreign investment: iran’s case shahid beheshti university of tehran faculty of law. 42 faizal kurniawan, “bentuk perlindungan hukum terhadap kekayaan minyak dan gas bumi sebagai aset negara melalui instrumen kontrak” (2013) jurnal prespektif 2,p 12. 43 simon butt and fritz edward siregar, “state control over natural resources in indonesia: implications of the oil and natural gas law case of 2012” (2013) 31:2 j energy nat resour iaw at 119. 214 | compensation arrangements in expropriating goods and equipment: an indonesian experience the task above should have consequences if, in its implementation, there are several goods and equipment under its supervision that are not managed optimally. this decision should also refer to the need and the correct calculation of the goods and equipment utilized or transferred to another party. in particular, the position of goods and equipment regulated in this ministerial regulation confirms the ownership of goods purchased by the cooperation contract contractor.44 property rights and its limitation are regulated in article 570 of the civil code.45 article 570 of the civil code outlines that property rights are the right to fully enjoy an object and control that object freely, as long as not used contrary to laws or general regulations held by the power having the authority to do so.46 it does not cause interference with the rights of others. all of this without prejudice to the possibility of revocation of rights for the public interest by payment of appropriate compensation. the definition supports a norm outlined in article 7 of law 25/ 2007 on investment. control over goods and equipment, which are the assets of the cooperation contract contractor, must be followed by a clause with compensation or compensation. it is different from the production sharing cooperation contract clause, which states the rules for transferring ownership without also regulating compensation or compensation for the transfer.47 the contract regulates the rights to equipment as executor of the use of goods and services in the oil and gas law in particular, in the matter of taking over ownership of goods and equipment in this cooperation contract. it should regulate for appropriate compensation due to legal actions committed by the state against the contractor's goods and equipment. the basis used is that the acquisition of ownership is included 44 satryadin, priyono & gutami, supra note at 31. 45 muhammad syahrir, “studi komparatif antara sistem kontrak bagi hasil minyak dan gas bumi di indonesia dengan sistem konsesi” (2011) at 170. 46 ibid. 47 andrey hernandoko & mochammad najib imanullah, “implikasi berubahnya kontrak bagi hasil (product sharing contract) ke kontrak bagi hasil gross split terhadap investasi minyak dan gas bumi di indonesia” (2018) at 28. 215 | indonesian journal of law and society in the revocation of rights (onteigening),48 which requires that apart from the revocation of the right based on statutory regulations and public interest, it also states the fundamental requirements regarding appropriate compensation due to the legal consequences of the acquisition. not only revocation of rights, legal actions committed by the state on contractor goods and equipment are also not based on the provisions in article 7(1) of the investment law, which if the government takes over ownership rights. it must also be accompanied by compensation under market prices. investor interest in seeking profit in the upstream oil industry must be considered. vi. conclusion the provisions for compensation for the expropriation of ownership of goods and equipment of a cooperation contract must be under the market price as the state's responsibility respectively contractor asset's. law 22/2001 on oil and gas, government regulation 35/2004 on upstream oil and gas business activities and cooperation contracts do not regulate compensation clearly for the expropriation of ownership of goods and equipment purchased by the contractor in the agreement. the provisions for compensation are stipulated in the provisions for taking ownership of goods and equipment of investors in article 7 of law 25/2007 on investment which requires the state in this case as the parties to provide compensation to the contractor if the acquisition of ownership of goods and equipment is still desired. references abidin, ratnasari fajariyah. “aspek yuridis renegosiasi kontrak karya di indonesia (studi kontrak karya antara pemerintah republik indonesia dengan pt.freeport indonesia)” (2018) 11:01 al-risalah. 48 rahayu, supra note 32. 216 | compensation arrangements in expropriating goods and equipment: an indonesian experience al-islami, affina niken. “legalitas kontrak kerjasama minyak dan gas bumi pada organisasi dan tata kerja satuan kerja khusus pelaksana kegiatan usaha hulu minyak dan gas bumi” 21. brigita p manohara, ahmad redi. “new oil and gas regulations in indonesia to prevent corruption in upstream sector” (2020) 7:08 j critical review. chandranegara, ibnu sina. “desain konstitusional hukum migas untuk sebesar-besarnya kemakmuran rakyat” (2017) 14:1 j konstitusi disemadi, hari sutra & sahuri lasmadi. “utilizing production sharing contracts (pscs) as a means for the protection of indonesia’s natural resources” (2019) 6:3 lentera hukum. duwi s ariyani. “penataan barang milik negara beleid aset hulu migas bikin rumit birokrasi”, koran bisniscom (oktober 2017), online: <https://koran.bisnis.com/read/20171013/451/698733/penataanbarang-milik-negara-beleid-aset-hulu-migas-bikin-rumitbirokrasi>. dwi atty mardiana, fadhlia, ridha husla, rs trijana kartoatmodjo. “assessing indonesia’s upstream petroleum fiscal regimes choices” (2019) 8:11 int j sci technol res 2449. gelb, alan, benn eifert & borje nils tallroth. the political economy of fiscal policy and economic management in oil-exporting countries, policy research working papers (the world bank, 2002). genio ladyan finasisca, tri hayati. “domestic beneficiation policy in mining sector : a case study of indonesia” (2020) 7:07 j crit rev. hasan, a madjedi. “kontrak pertambangan minyak dan gas bumi, (training on the law of energy and mineral resources)” in (faculty of law, universitas indonesia, 2010). hernandoko, andrey & mochammad najib imanullah. “implikasi berubahnya kontrak bagi hasil (product sharing contract) ke kontrak bagi hasil gross split terhadap investasi minyak dan gas bumi di indonesia” (2018). 217 | indonesian journal of law and society howard r williams, patrick h martin, charles j meyers. manual of oil and gas terms: annotated manual of legal, engineering and tax words and phrases, 17 th edition ed (lexisnexis). huala adolf. dasar dasar hukum kontrak internasional (bandung: refika aditama, 2008). j satrio, hukum perikatan (perikatan pada umumnya) (bandung: alumni, 1999). jh nieuwenhuis. pokok pokok hukum perikatan (surabaya: airlangga university press, 1985). kurniawan, faizal. “bentuk perlindungan hukum terhadap kekayaan minyak dan gas bumi sebagai aset negara melalui instrumen kontrak” (2013). lalang tri utomo, achmad busro, ery agus priyono. “aspek hukum penerapan asas kekuatan mengikat dalam kontrak bagi hasil minyak dan gas bumi di indonesia” (2016) 5:4 dipenogoro law journal. li, dr grace. “the prc contract law and its unique notion of subrogation” (2009) 4:1 j int commer law technol 10. lubintara, benny. “ekonomi migas-tinjauan aspek komersial kontrak migas” in (jakarta: pt. gramedia widhasarana indonesia, 2012). m yahya harahap. segi segi hukum perjanjian (alumni, 1982). mabadi, amir hosein. legal strategies in upstream oil and gas contracts to attract foreign investment: iran’s case shahid beheshti university of tehran faculty of law, 2008). mckay, jennifer & balbir bhasin. “mining law and policy in indonesia: issues in current practice that need reform” (2001) 19:4 j energy nat resour law. muhammad, abdul kadir. hukum perikatan (bandung: alumni, 1990). naazneen barma, rents to riches? the political economy of natural resource-led development (washington, d.c: world bank, 2012). 218 | compensation arrangements in expropriating goods and equipment: an indonesian experience migas, buletin skk. “membuka harapan baru dari skema gross split” (2017). putuhena, m ilham f. “politik hukum pengelolaan hulu migas pasca putusan mahkamah konstitusi” (2015). rahayu, sang ayu putu. “prinsip hukum dalam kontrak kerjasama kegiatan usaha hulu minyak dan gas bumi” (2017) 32:2 yuridika. r setiawan. pokok pokok hukum perikatan (bandung: binacipta, 1977). rudi m simamora. hukum minyak dan gas bumi (jakarta: djambaran, 2000). salim hs. hukum pertambangan mineral dan batubara (jakarta: sinar grafika, 2014). satryadin, maulana arba’, ery agus priyono & budi gutami. “penerapan asas proporsionalitas dalam production sharing contract pada kegiatan usaha pertambangan hulu minyak dan gas bumi” (2016). simon butt and fritz edward siregar. “state control over natural resources in indonesia: implications of the oil and natural gas law case of 2012” (2013) 31:2 j energy natural resource law. sulaiman. “rekonstruksi hukum minyak dan gas bumi yang berkeadilan di indonesia” (2016) 18:2 kanun jurnal ilmu hukum. syahrir, muhammad. “studi komparatif antara sistem kontrak bagi hasil minyak dan gas bumi di indonesia dengan sistem konsesi” (2011). microsoft word 17479.ijls.published.docx indonesian journal of law and society (2020) 1:2 125-144 issn 2722-4074 | doi: 10.19184/ijls.v1i2.17479 published by the university of jember, indonesia available online 30 september 2020 * corresponding authors’ e-mail: anindanovediaesa@gmail.com legal consequences of refugees' visa misuse to obtain indonesian citizenship aninda novedia esafrin* university of jember, indonesia antikowati university of jember, indonesia gautama budi arundhati university of jember, indonesia abstract. this paper aims to examine problems regarding refugees' possible misuse inconsistent with indonesia's laws and regulations. in this context, the government can make efforts to deal with refugees who enter indonesia illegally. the government can formulate new laws and regulations in more detail, clearly and in detail, starting from the arrest process to the sanctions process obtained. because, until now, indonesia has not had this policy. those refugees' status then serves to get a decent living in a recipient country such as australia. refugees widely use visa misuse because indonesia implements a visa-free system of visits to 169 countries worldwide. visa-free visit policy based on president regulation number 125/2016 on visafree visit. in this regard, the country needs to anticipate the increasing number of visa misuse for refugees entry to indonesian territory by sending them to immigration detention centers as a form of sanctions imposed before returning to their country and making deportation the last step in resolving the visa misuse problem committed by refugees. keywords: misuse of visa in indonesia, immigration detention, refugee deportation. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions submitted: 18/04/2020 reviewed: 12/08/2020 revised: 12/09/2020 accepted: 30/09/2020 126 | legal consequences of refugees' visa misuse to obtain indonesian citizenship i. introduction the increasing number of refugee flows in indonesia cannot be separated from refugees' visa misuse.1 refugees move from their home country to indonesia due to discrimination from their group or country due to ethnicity, religion, and race, causing fear and terror that threatens refugees. these factors ultimately underlie refugees to pursue a decent life in other countries. indonesia is only used as a transit point for refugees to obtain refugee status from the unhcr agency, responsible for granting refugee status by the 1951 convention and 1967 protocol provisions. the final goal of refugees to get a decent living in australia. australia's factor as a receiving destination country is that australia's economy is very advanced, and australia is a member country that signed the 1951 convention and 1967 protocol.2 a standard visa used by refugees to commit misuse is a free visit visa. the visa-free visit itself is a government policy to exempt visas for 169 countries to improve the indonesian economy and increase the tourist visits of foreign nationals to indonesia. the visit visa-free policy is regulated in presidential regulation number 125/2016 on free visit visas. however, the refugees responded differently to this favorable policy because refugees could quickly enter indonesian territory without using official visas. in addition to using a visit visa-free, they can use a temporary residence permit visa to enter indonesian territory. if the visa expires, they then overstay and request an application to make them refugees in indonesia. the government takes the problem of misuse of visas by refugees seriously by deporting refugees to their home country, which previously made their entry into an immigration detention center to record their identity. it aims to put that identity on the deterrence list and register as a condition for deportation.3 deportation is the last step taken by the government to reduce the misuse by refugees. however, before the deportation, the government 1 an explanation from the united nations high commissioner on refugees (unhcr) indonesia shows that at the end of december 2019, the number of registered refugees in indonesia was 13,657 people from 45 countries, more than half of whom were afghan refugees. see united nations, "unhcr in indonesia" (2020), un high comm refug, online: <https://www.unhcr.org/id/en/unhcr-in-indonesia>. 2 maria pedersen, australia and the 1951 refugee convention: an analysis of incentives for non-compliance (aalborg: aalborg university, 2016) at 5. 3 kadarudin et al., "the situation of international refugee in indonesia: a legal perspective" (2018) 4:1 veritas justitia at 13-14. 127 | indonesian journal of law and society undertook diplomatic cooperation to return to their home countries could be guaranteed their safety by their country. this paper examines the problems resulting from the misuse of visas by refugees, not by indonesia's laws and regulations. the government can make efforts to deal with refugees who enter indonesia illegally. the government can formulate new laws and regulations that can discuss problems caused by refugee actions in more detail, clearly and in detail, starting from the arrest process to the sanctions process obtained. because until now, indonesia does not have this policy. the writing structure will begin by discussing the state's authority to crack down on refugees' visa misuse in indonesia. the discussion section on state authority will examine various international agreements that address visa problems for refugees from other countries. after discussing the state's authority, we will then discuss the legal consequences resulting from international refugees' misuse of visas. the discussion section on the legal consequences of the misuse of visas by refugees will describe the consequences of misusing visas in various legal actions by the indonesian government. the paper will end with a discussion of the possible solution. ii. the government's response to visa misuse to take action against the misuse of visas by refugees is undoubtedly not easy. the government needs several policies to support the enforcement of visa misuse by refugees. this policy is in the form of cooperation abroad. a. overseas cooperation in handling the smuggling of refugees taking cooperative action with foreign countries is a step taken by the government in dealing with refugees' problems. the cooperation between indonesia and abroad to deal with people smuggling, especially refugees, is in bali process on people smuggling, lombok treaty, and operation sovereign border. human smuggling involves indonesian citizens and other citizens so that the smuggling can be said to be successful. 128 | legal consequences of refugees' visa misuse to obtain indonesian citizenship 1. bali process on people smuggling bali process on people smuggling is regional cooperation in the security sector in border areas regarding people smuggling and transnational criminal acts in refugees. several countries participating in the bali process on people smuggling are countries in the asian region. these countries, such as japan, thailand, south korea, afghanistan, malaysia, singapore, turkey. international agencies participating in the collaboration are the organization for migration (iom) and the united nations high commissioner for refugees. the meeting between countries and international organizations resulted in a cooperation framework that deals with problems in the security, political, economic, and social fields. the cooperation is divided into three points. first, activities that do not respect national boundaries and sovereignty; second, activities that endanger immigrant human rights; and third, activities that interfere with immigration management.4 the bali process is a formidable challenge for refugees who are crossing borders because it puts tremendous pressure on people smuggling to reduce their intensity in crossing borders of a country. this emphasis was made to reduce the problem of people smuggling across national borders, but this is not easy because reducing smuggling intensity means eliminating all persons involved in human smuggling located within national borders. 2. lombok treaty the lombok treaty is a bilateral collaboration between indonesia and australia. this cooperation is to maintain national security and peace in the territorial sea boundary between indonesia and australia. this collaboration was carried out in 2006 to maintain maritime security. however, the cooperation's main objective is related to security in the territorial boundaries of each country. the main points of the cooperation are lombok treaty in the defense sector by increasing cooperation on capacity building through military education, exchange, and cooperation in the field of technology; law enforcement to prevent and end criminal acts including human smuggling, money laundering, terrorist financing, corruption, fishing illegal, cybercrime, narcotics trafficking and arms trafficking and counter-terrorism by facilitating a significant and rapid response in the face of terrorist attacks 4 nurul azizah zayzda dan sri wijayanti, "negara maritim indonesia, migrasi tidak teratur, dan hak pengungsi lintas batas" (2016) 3:2 insignia: journal of international relations at 56. 129 | indonesian journal of law and society and by strengthening intelligence cooperation in dealing with terrorism.5 the cooperation agreement made by indonesia and australia further emphasizes cooperation on the boundaries of each country's territorial sea, which does not experience the threat of crimes such as people smuggling or refugees. 3. operation sovereign borders operation sovereign borders is an operation initiated by australia in 2013. this operation is related to the military's border security, aiming to eradicate people smuggling and protect australia's borders. australia has a policy in this operation: to refuse refugees who come to australia by sea by boat or boat without using a visa or other official documents. this policy is known as the slogan, "no way, they will not make australia home".6 as a result of this policy, many ships or boats carrying refugees without visas and official documents were sent out of australia's territorial borders and returned to indonesia. so that with this policy, indonesia felt very disadvantaged because indonesia considered australia to transfer the burden and responsibility of refugees to indonesia.7 therefore, indonesia had the arrival of refugees who were returned by australia, so indonesia had difficulty finding destination countries. moreover, indonesia cannot repatriate or return refugees to their country of origin because indonesia has not ratified the 1951 convention on refugees. b. cooperation with international organizations 1. united nations high commissioner for refugees (unhcr) refugee protection is the responsibility of all countries, especially countries that have signed and ratified the 1951 convention. countries that have signed the 1951 convention are legally obliged to protect refugees under the 1951 convention provisions regardless of ethnicity, religion, country of origin, and to respect the basic principles of protection. located among countries receiving many asylum seekers and refugees such as malaysia, 5 ibid at 58. 6 ibid at 14. 7 christy debora elizabeth, l. tri setyawanta, and nanik trihastuti, "kebijakan operation sovereign borders australia dalam penanganan manusia perahu dan implikasinya terhadap kedaulatan indonesia" (2016) 5:3 diponegoro law journal at 2. 130 | legal consequences of refugees' visa misuse to obtain indonesian citizenship thailand, and australia. indonesia is influenced by refugees' increasing movement transiting to indonesia. it tends to result in problems in indonesian security. therefore, persons of particular concern and care for unhcr are refugees under the 1951 convention, persons who have fled conflict or serious disturbance to public order (refugees according to the definition of the oau convention and the cartagena declaration), persons who have returned to their home country (ex-refugees), stateless people and internally displaced persons.8 unhcr assists refugees in obtaining refugee status, but not all refugees can obtain refugee status. the stages of obtaining refugee status must go through the refugee applicant registration process, followed by an initial interview and then determining the refugee status. the refugee applicant registration contains official documents containing the refugee's complete identity and why they left the country of origin. after the registration process is over, unhcr will issue an attestation letter containing the principle of nonrefoulment. the initial interview is an interview conducted by unhcr to scrutinize the refugee applicant's case before being recommended to accept or reject the case. the determination of refugee status is the final stage in resolving cases of refugee status requests.9 state security is certainly not easy for indonesia to do alone. therefore, the indonesian government and unhcr collaborate to persuade refugees to be returned to their home countries without resorting to coercion. first, these methods are conducting voluntary repatriation, the process of carrying out repatriation, namely by sharing information about conditions in the country of origin and conducting interviews with refugees to ensure that they have received sufficient information. then agree with the country of origin and country of asylum. after that, provide the necessary documentation for refugees and provide transportation to bring them back to their country. provide material and financial assistance if refugees need money at an early stage when they return to their home country. then, observing the refugees 8 heru hartono, peran imigrasi dalam penanganan pengungsi warga negara asing di kota medan, thesis (medan: fakultas hukum universitas sumatera utara) at 19. 9 the united nations high commissioner for refugees (unhcr), or the united nations agency for refugee affairs, is a non-political humanitarian organization formed by the un general assembly in december 1950 and began operations on january 1, 1951. it was mandated to provide international protection to refugees and promote long-term solutions to their problems. unhcr carries out its mandate in collaboration with governments, subject to approval by the government concerned, and with private organizations. 131 | indonesian journal of law and society who have returned to their home countries to ensure that they have received full protection from their government and participate in efforts to ensure the success of refugee reintegration.10 second, the indonesian government has created local settlements for refugees who are unable to return home. local settlements were made close to local indonesians or of local descent from the same country as refugees. it can provide benefits such as bringing in skills that can help the asylum country, creating new resources brought by refugees, the interaction between ethnic groups, local cultures, and languages and creating a sense of security. third, placement in a third country is a placement that depends on the receiving country. so that if the receiving country wants to accept refugees in that country, the refugees can move and reside in the receiving country. if the receiving country does not wish to accept refugees, the refugees can be returned to the country of transit. the protection function, established by the unhcr, aims to advance the settlement and ratification of international conventions to protect refugees. it also oversees the implementation and proposes amendments, improves refugees' situation, and reduces the number of people requiring protection. also, it aims to increase voluntary return or assimilation with the communities of new countries, increase the acceptance of refugees into within countries, and facilitate refugees' transfer of assets. it also aims to obtain information from the government regarding the number and condition of refugees in its territory and applicable laws and regulations, and maintain close relations with government and non-government organizations. finally, it aims to establish relationships with private organizations dealing with refugee issues and facilitate private businesses.11 2. international organization for migration (iom) cooperation between the government and iom is to assist the indonesian government in implementing policies and implementing laws and regulations and migration mechanisms for refugees who come to indonesia without using visas or other official documents. iom provides training to government officials and also assists asylum seekers and refugees. 10 joko setiyono, "kontribusi unhcr dalam penanganan pengungsi internasional di indonesia" (2017) 46:3 masalah-masalah hukum at 279. 11 heru hartono, supra note 8 at 18. 132 | legal consequences of refugees' visa misuse to obtain indonesian citizenship the role of iom in the handling of refugees in indonesian territory is: first, providing adequate humanitarian and medical assistance to targeted immigrants; second, respecting the fundamental rights of immigrants; third, provide information and consultation to immigrants on various options including voluntary return; fourth, increasing the capacity of central and local government on a sustainable basis in dealing with their internal problems; fifth, be in a healthy condition to face the burdens and pressures of carrying out activities and be able to maintain personal safety in the field. sixth, undergo proper financial procedures.12 3. association of southeast asian nations (asean) many refugees entering indonesia and southeast asian countries have made asean members cooperate within handling rohingya refugees. rohingya refugees have not only fled to indonesia but also to thailand and malaysia. this is the background of the cooperation related to refugees in the asean region. the refugee problem can impact stability and security. it must be placed in the state and international organizations' priorities so that it can be resolved together immediately. in connection with rohingya refugees' problems, some obstacles prevent asean countries from working together to end the problem. the obstacle originates from one of the agreements that are the basis for asean member countries' principles. the agreement in question has become the basis of the organization and is recorded in the asean charter. the basic principle applied by asean is the principle of non-intervention.13 4. cases and practices for handling refugees in indonesia indonesia has received many refugees from various countries such as myanmar, afghanistan, vietnam, and iran. this is because indonesia is a strategic transit country in the crossings of a country. the following is an 12 ibid at 22. 13 muchsin idris dan soekotjo hardiwinoto, "peran asean dalam penanganan pengungsi pencari suaka yang ada di indonesia (studi kasus pengungsi rohingya di aceh)" (2016) 5:3 diponegoro law journal at 7. the principle of non-intervention is a principle that guarantees recognition of member countries' sovereignty and guarantees protection from interference from a member state against the domestic politics of other member countries. 133 | indonesian journal of law and society example of a refugee case using indonesia as a transit country and how the indonesian government deals with these refugees. first, refugees from galang island. on may 10, 1975, the capital of south vietnam, saigon, fell into the hands of north vietnam, causing a conflict that led to the flow of refugees coming from vietnam.14 vietnamese refugees left their country due to several factors, namely the vietnamese people's fear that the prc would use chinese descent people as a tool to control vietnam. this prejudice cannot be separated from the disharmony of vietnam-china foreign policy. then there is racial discrimination. children of chinese descent are not allowed to enter schools, and chinese people cannot work in the government. there is increasing tension between the prc-vietnam was due to the increasing intervention of the vietnamese military in cambodia, which provoked the prc's invasion of vietnamese territory.15 to solve the problem of refugees on galang island, the indonesian government has implemented several policies. namely the galang humanitarian operation in 1996. the purpose of the operation was to accelerate the return of boat people to galang island. indonesia is working with unhcr. the handling of refugees is carried out by voluntary repatriation to their country of origin.16 apart from voluntary repatriation, indonesia and unhcr have taken the following ways to persuade vietnamese refugees to return to their home countries. first, creating a sense of love for their homeland and homesickness by placing billboards and banners in vietnamese, which are placed in refugee camps; second, the purchase of magazines or brochures in vietnamese, which was imported directly from vietnam. third, screenings of films and interviews of former refugees from galang island who have been successful and working in vietnam and contain appeals to return home.17 second, the rohingya refugees. rohingya refugees are refugees from the arakan ethnic group in the state of north myanmar. the government and military in myanmar ethnically marginalize the rohingya. they are considered by the government as stateless persons and are not fully 14 joshua forkert, "refugees, orphans and a basket of cats: the politics of operation babylift" (2012) 36:4 journal of australian studies at 429-431. 15 moh fandik, "penampungan orang vietnam di pulau galang 1975-1979" (2013) 1:1 avatara, at 2. 16 bunari, "pulau galang sebagai penamungan pengungsi vietnam" (2017) 4:1 seuneubok lada: jurnal ilmu-ilmu sejarah, sosial, budaya dan kependidikan, at 33. 17 vindy septia anggrainy, "perlindungan pengungsi lintas batas negara di indonesia menurut hukum internasional" (2014) 2:1 lex et societatis, at 61. 134 | legal consequences of refugees' visa misuse to obtain indonesian citizenship recognized as having their citizenship and residency status only temporarily. they must obtain permission before marriage, and permission can be legalized after several years of their marriage. their movements are also restricted; they must get permission to even stop in other villages and are often prevented from getting medical treatment and education. the rohingya in myanmar are considered foreigners, and they are not allowed to work in any field within myanmar's territory.18 in handling its rohingya refugees, the indonesian government has carried out two factors: the indonesian government's internal factor, by improving laws and regulations to solve the refugee problem. the external factor is seeking acceptance into the receiving country so that refugees can have a better livelihood than even though indonesia has not ratified the 1951 convention and the 1967 protocol.19 third, the timor leste refugees (1998-2008).20 east timorese refugees became refugees as a result of the failure of indonesia's foreign diplomacy. it lost to portugal's demands for a referendum in east timor in 1999 in fulfilling portugal's decolonization process over its former colony of portuguese timor. president habibie's decision regarding unconstitutional politics offered two options without consulting or agreeing to the mpr ri and the east timorese people regarding conflict and violence in timor leste. nearly 30,000 refugees live in refugee camps in east nusa tenggara (ntt) province.21 the ways of the indonesian government in handling the timor leste refugee case are: first, the indonesian government conducts diplomacy with the timor leste government so that east timorese refugees return as timorese citizens who need special protection; second, the government of indonesia and the united nations discussed the construction of a new refugee camp in timor leste to relocate east timorese refugees in indonesia 18 syed s mahmood et al., "the rohingya people of myanmar: health, human rights, and identity" (2017) 389:10081 the lancet, at 1845. 19 hardi alunaza dan m. kholit juani, "kebijakan pemerintah indonesia melalui sekuritisasi migrasi pengungsi rohingya di aceh tahun 2012-2015" (2017) 2:1 indonesian perspective, at 8. 20 iin karita sakharina & kadarudin, pengantar hukum pengungsi interansional (perbedaan istilah pencari suaka, pengungsi internasional, dan pengungsi dalam negeri) (yogyakarta: deepublish, 2017) at 254. 21 the figure of 30,000 refers to refugees who wish to maintain their status as indonesian citizens. see cahyo pamungkas, "perbatasan negara dalam perspektif sosial": (2016) 15:1 jurnal ledalero at 169-170. 135 | indonesian journal of law and society to be precise in ntt; third, there must be an agreement between indonesia and the united nations transitional administration in timor leste (untaet) regarding refugee locations that are managed by leaders with the direct appointment of refugees as camp manager; fourth, untaet and other organizational bodies are not allowed to create or implement programs without coordinating with the camp manager to avoid political exploitation.22 iii. legal consequences for refugees misuse by refugees results in legal consequences that have previously been regulated in the immigration law. the legal consequence is that the perpetrator is placed in an immigration detention center or detention center and deportation. this is done to prevent the misuser from repeating his actions and be appropriately fostered in detention before returning to his country due to the misuse of official documents. a. immigration detention center (rudenim) the immigration detention center is a temporary residence or shelter as a quarantine place for immigrants, immigration criminals, and refugees who enter indonesia illegally or do not have official documents such as visas and passports.23 people who are temporarily living in the detention center are called detainees. rudenim's supervision is at the directorate general of immigration. the main task of the rudenim is to carry out some of the main tasks of the ministry of law and human rights in the field of detecting foreigners who violate the laws and regulations on immigration. they get immigration actions which have accepted the decision to return to their country or deportation. apart from having the main task of assisting the ministry of law and human rights, the rudenim also has four functions, inter alia, carrying out detention, isolating and deporting tasks, carrying out repatriation tasks and making proposals to deter foreigners, implementing 22 sakharina, supra note 20 at 258. 23 evawani elysa lubis dan try panji akbari, "pola komunikasi pencari suaka asal afghanistan dalam berinteraksi di rumah detensi imigrasi pekanbaru," (2016) 3:1 jurnal online mahasiswa at 3. 136 | legal consequences of refugees' visa misuse to obtain indonesian citizenship facilities for placing foreigners in third countries as well as implementing administrative management.24 foreigners are placed in detention centers because they are in indonesian territory without having a valid immigration permit. they are waiting for the process of repatriation or deportation, waiting for the decree of the minister of law and human rights regarding objections submitted, subject to immigration action. the latter has served previous sentences and has not been able to be returned or deported. b. deportation deportation is an act of force by immigration officials to remove foreigners from indonesian territory due to immigration violations.25 international law recognizes that a country has the right to expel foreigners from its territory. however, international law does not provide explicit provisions on why countries can remove foreigners from their country. moreover, a country's right to remove foreigners from its territory is limited only by international law principles. an international legal expert, o'connell, expressed his opinion that the cause or reason for a country to expel foreigners from the country.26 first, taking action that endangers public safety.27 second, they cannot pay for their living.28 third, committing crimes related to prostitution.29 fourth, suffering from infectious diseases.30 fifth, political reasons such as espionage activities.31 sixth, against the laws of a country and insulting the flag of a country.32 24 m. alvi syahrin, "penerapan hukum deteni tanpa kewarganegaraan (stateless) yang ditahan lebih dari 10 (sepuluh) tahun di rumah detensi imigrasi jakarta," (2017) 3:2 fiat justicia at 458. 25 sihar sihombing, hukum keimigrasian dalam hukum indonesia (bandung: nuansa aulia,2013) at 61. 26 sri setianingsih suwandi, "suatu peninjauan terhadap masalah deportasi dari segi hukum internasional," (1977) 7:2 jurnal hukum & pembangunan at 85. 27 ibid. 28 ibid. 29 ibid. 30 ibid. 31 ibid. 32 ibid. 137 | indonesian journal of law and society deportation is an action that is non-litigation in nature, which means that it is an action in the form of imposition of sanctions outside or not through a court decision. the deportation processes carried out to foreigners who violate law number 6/2011 on immigration are the legal consequences of acts committed by the foreigner, which are differentiated into pro justitia or administrative actions in the form of deportation. an administrative process is then carried out at the immigration office, making a detention report (bap) regarding the violated articles. bap is an authentic note or writing, made in a particular form by an investigator or examiner by providing a dated and signed by the investigator and the suspect and the expert witnesses being examined. after all the bap processes have been completed, the process will continue with making a detention administration action in detention for 30 days at the immigration detention center.33 after that, they are put in the detention room; the stranger is put in the detention room for 30 days. detention rooms are located in the respective regional immigration offices, whether in their respective regions, regencies, cities, or provinces. as a result, if foreigners commit an offense or misuse, they will be put into a detention room by the area of residence. foreigners can be placed in a place other than the detention room when the foreigner is sick, giving birth, or is still a minor. after 30 days of being placed in the detention room, the foreigner is transferred to the immigration detention center or rudenim for ten years while waiting for the deportation process. during ten years, foreigners may be outside the detention center with the condition that they are obliged to report every six months. next is checking travel documents such as passports. this examination is to check the validity period of the passport. if the passport is no longer valid, they must coordinate with the representative of the country of origin of the foreigner to apply for a temporary passport. after having checked the travel documents, the ticket to leave for foreigners is also checked. suppose persons do not have a ticket fee. in that case, they must apply for ticket fee assistance to their respective countries or international organizations such as unhcr and iom. registration is made in the statuskim section. the registration stage is carried out to verify the foreigner's identity and then conduct self 33 astrid ditha, amalia diamantina, & amiek soemarmi, "pelaksanaan deportasi orang asing di indonesia berdasarkan undang-undang nomor 6 tahun 2011 tentang keimigrasian (studi kasus kantor keimigrasian jakarta timur)," (2016) 5:2 diponegoro law journal at 12. 138 | legal consequences of refugees' visa misuse to obtain indonesian citizenship examination and luggage of the foreigner; if there are items deemed dangerous, the immigration officer can confiscate the goods and input data manually electronically related to confiscated goods. after the registration number is issued, fingerprints and facial photographs are taken, which will be registered in the list of deterrence or prevention. the registration number obtained is a one-time number that is inserted into the passport. c. the immigration intelligence the immigration intelligence agency is regulated in law number 6/2011 on immigration and government regulation, law and human rights number 30/2016 on immigration intelligence. the task of the immigration intelligence is to maintain indonesia's sovereignty and the immigration service apparatus, law enforcement, state security, and facilitator of community welfare development. immigration intelligence also has functions regulated in article 74 (2) law no. 6/2011 on immigration, stating that intelligence carries out an investigation, security, and data collection. the data collection process is divided into two mechanisms, open and closed.34 the open method is carried out by regularly collecting information and notes and recording every person who has been granted immigration permits. open immigration intelligence activities can be carried out routinely or continuously, namely, information collection and investigation (intelligence). routine or continuous activities carried out by the immigration intelligence are regulated in article 72 law no. 6/2011, and operational or special, namely propaganda, psychological warfare.35 then the immigration intelligence collects data in private using immigration security or counterintelligence or in an open way, namely using routine and operational. routinely or continuously closed, namely related to long-term espionage and short-term espionage and closed operations or specifically using rumors, sabotage, terror, subversion, and insurgence.36 another way of monitoring used by immigration intelligence is by observing and examining all indonesian citizens' activities in applying for passports and foreign citizens related to the plans and whereabouts of foreigners in indonesia from coming to leaving indonesia. this is emphasized in article 34 article 74 law no. 6/2011 on immigration. 35 article 72 law no. 6/2011 on immigration. 36 article 74 (2) law no. 6/2011 on immigration. 139 | indonesian journal of law and society 68 (1) law no. 6/2011 on immigration, namely that the immigration control of foreigners is carried out at the time of entry or exit visa applications. the granting of stay permits is carried out by collecting, processing, and presenting data and information, then compiling a list of names of foreigners who are subject to deterrence or prevention, supervising the presence and activities of foreigners in the territory of indonesia after that taking photos and fingerprints, and other activities that can be legally accountable.37 the law also regulates the refusal of foreigners to enter indonesian territory. the refusal process is carried out at every airport, seaport, and border crossings throughout indonesia by immigration officials. provisions for the refusal of foreigners who plan to enter indonesian territory are regulated in article 13 (1) law no. 6/2011 on immigration, which states that immigration officials can reject foreigners if their names are listed on the deterrence list not have valid travel documents. moreover, if a foreigner has a fake immigration document or does not have a visa, except those who are exempted from the obligation to have a visa, have provided incorrect information in obtaining a visa, suffer from infectious diseases that endanger public health, are involved in international crimes and transnational organized crime, including in the list of people looking to be arrested from a foreign country, involved in treason against the government of the republic of indonesia or involved in a network of practices or activities of prostitution, trafficking in persons, and people smuggling.38 foreigners who already have an indonesian visa can also be refused entry to indonesia if they are not on the transportation equipment crew list or passenger list, foreigners who do not have sufficient living costs while in indonesia are considered for refusal to enter.39 foreigners who are detected as endangering security or disturbing public order may also be refused entry to indonesia. this provision has been regulated in article 106 (2) the regulation of the minister of law and human rights number 44/2015 on the procedures for examining indonesian territory entry and exit at immigration checkpoints.40 37 article 68 law no. 6/2011 on immigration. 38 article 13 law no. 6/2011 on immigration. 39 article 42 law no. 6/2011 on immigration. 40 article 106 regulation of the minister of law and human rights no. 44/2015 on the inspection procedures for entry and exit indonesian territory at immigration checkpoints. 140 | legal consequences of refugees' visa misuse to obtain indonesian citizenship the wave of refugees entering indonesia is vast, mostly refugees who do not use official or illegal documents. several factors influence the wave of refugee flows. first, the driving factor for evacuation outside the country is triggered by prolonged conflict by different ethnicities, security conditions, politics, human rights, economic crises, and human smuggling.41 second, the pull factor, namely australia's result as an economically developed country, encourages refugees to come and seek asylum in australia.42 moreover, australia is one of the countries that signed the 1951 geneva convention and the 1967 protocol on refugees. third, the model is divided into two kinds, legal and illegal.43 the legal mode is stipulated in presidential decree no. 125/2016 on visa-free visits provided to 169 countries that have encouraged them to enter indonesia without an entry visa for coming to indonesia. the refugees illegally entered indonesia, facilitated by smugglers who had previously paid a certain amount of money to enter traditional routes along the indonesian border. due to the very high flow of refugees coming to indonesia, immigration intelligence made a circular that regulates refugees' entry and exit in indonesia. the circular contents, namely that immigration officers are required to refuse foreigners who enter indonesia, not by applicable regulations.44 foreigners who express a desire to seek asylum upon arrival in indonesia so that they are not subject to immigration measures in the form of deportation to the territory of the country; immigration officials have the right to contact the international organization working on refugee issues or unhcr if there is an indication of a refugee to determine their status; if the immigration checkpoint (tpi) is far from the immigration officer, it is required to coordinate with the person in charge of the transportation means; foreigners who have received protection from unhcr as asylum seekers or refugees so that their residence permit is not questioned; foreigners who have obtained the status of asylum seekers or refugees from unhcr who have violated the law to be resolved in accordance with the provisions of applicable law in indonesia; as a supervisory measure so that the head of the immigration division records qualitative and quantitative data in order to monitor their presence and report it regularly to the directorate general 41 trisapto agung nugroho, "peran intelijen keimigrasian dalam rangka antisipasi terhadap potensi kerawanan yang ditimbulkan oleh orang asing di wilayah indonesia" (2018) 12:3 jurnal ilmiah kebijakan hukum. 42 ibid. 43 ibid. 44 heru hartono, supra note 8 at 51. 141 | indonesian journal of law and society of immigration; housing and living expenses during the immigration office's research process or while the foreigner is under unhcr protection is not borne by the immigration office. iv. conclusion legal consequences for refugees who have misused a visa is by placing them in an immigration detention center after being deported. the imposition of these sanctions is regulated in law number 6/2011 on immigration. immigration agencies use immigration detention centers to accommodate foreigners misusing their entry permits to indonesian territory by article 83 (1) of the immigration law. deportation is the next step taken by the immigration agency to impose sanctions on foreigners who misuse laws and regulations. deportation to foreigners is carried out with diplomatic cooperation between indonesia and the foreigner's country of origin to return home safely. the immigration intelligence agency assists the state in monitoring refugees who enter indonesia. the supervision is carried out so that refugees do not commit violations or misuse when they enter indonesia and prevent refugees from causing problems that can endanger indonesia's sovereignty. the immigration intelligence agency can reject or accept foreigners or indonesian citizens who will enter indonesia based on law number 6/2011 on immigration. the government needs to update the legislation on refugees in more detail, covering refugees' entry and exit, violations, and the level of crimes committed by refugees. because until now, there are no laws and regulations that have not been discussed in detail about refugees. then, indonesian citizens must also play an active role in assisting the government in overcoming refugees by reporting if refugees' behavior is suspicious. it is also essential that indonesian citizens who stay in border areas also help maintain state security and state security officials and the immigration intelligence agency, which like the front guard in the security system and monitoring foreign nationals' entry and exit to indonesia. it is better if refugees' security systems and supervision in indonesia's outer regions are improved to not enter indonesia by misusing official documents such as visas. 142 | legal consequences of refugees' visa misuse to obtain indonesian citizenship references alunaza, hardi & m kholit juani. "kebijakan pemerintah indonesia melalui sekuritisasi migrasi pengungsi rohingya di aceh tahun 2012-2015" 2:1 indonesian perspective 1–17. anggrainy, vindy septia. "perlindungan pengungsi lintas batas negara di indonesia menurut hukum internasional" (2014) 2:1 lex et societatis. bunari, bunari. "pulau galang sebagai penamungan pengungsi vietnam" (2017) 4:1 seuneubok lada: jurnal ilmu-ilmu sejarah, sosial, budaya, dan kependidikan. ditha, astrid, amalia diamantina & amiek soemarmi. "pelaksanaan deportasi orang asing di indonesia berdasarkan undang-undang nomor 6 tahun 2011 tentang keimigrasian (studi kasus kantor keimigrasian jakarta timur)" (2016) 5:2 diponegoro law journal. elizabeth, christy debora, l. tri setyawanta & nanik trihastuti. "kebijakan operation sovereign borders australia dalam penanganan manusia perahu dan implikasinya terhadap kedaulatan indonesia" (2016) 5:3 diponegoro law journal. fandik, moh. "penampungan orang vietnam di pulau galang 1975-1979" (2013) 1:1 avatara. forkert, joshua. "refugees, orphans and a basket of cats: the politics of operation babylift" (2012) 36:4 journal of australian studies. hartono, heru. peran imigrasi dalam penanganan pengungsi warga negara asing di kota medan, thesis (medan: fakultas hukum universitas sumatera utara). idris, muchsin & soekotjo hardiwinoto. "peran asean dalam penanganan pengungsi pencari suaka yang ada di indonesia (studi kasus pengungsi rohingya di aceh)" (2016) 5:3 diponegoro law journal. kadarudin et al. "the situation of international refugee in indonesia: a legal perspective" (2018) 4:1 veritas justitia. lubis, evawani elysa & try panji akbari. "pola komunikasi pencari suaka asal afghanistan dalam berinteraksi di rumah detensi imigrasi pekanbaru" (2016) 3:1 jurnal online mahasiswa. mahmood, syed s, et al. "the rohingya people of myanmar: health, human rights, and identity" (2017) 389:10081 the lancet. 143 | indonesian journal of law and society nations, united. "unhcr in indonesia" (2020), online: un high commissioner for refugees, online: <https://www.unhcr.org/id/en/ unhcr-in-indonesia>. nugroho, trisapto agung. "peran intelijen keimigrasian dalam rangka antisipasi terhadap potensi kerawanan yang ditimbulkan oleh orang asing di wilayah indonesia" (2018) 12:3 jurnal ilmu kebijakan hukum. pamungkas, cahyo. "perbatasan negara dalam perspektif sosial": (2016) 15:1 jurnal ledalero. pedersen, maria. australia, and the 1951 refugee convention: an analysis of incentives for non-compliance. (aalborg: aalborg university, 2016). sakharina, iin karita & kadarudin. pengantar hukum pengungsi interansional (perbedaan istilah pencari suaka, pengungsi internasional, dan pengungsi dalam negeri), 1st ed, (yogyakarta: deepublish, 2017). setiyono, joko. "kontribusi unhcr dalam penanganan pengungsi internasional di indonesia" (2017) 46:3 masalah-masalah hukum. sihar sihombing. hukum keimigrasian dalam hukum indonesia, 1st ed (bandung: nuansa aulia, 2013). suwandi, sri setianingsih. "suatu peninjauan terhadap masalah deportasi dari segi hukum internasional" (1977) 7:2 jurnal hukum pembangunan. syahrin, m alvi. "penerapan hukum deteni tanpa kewarganegaraan (stateless) yang ditahan lebih dari 10 (sepuluh) tahun di rumah detensi imigrasi jakarta" (2017) 3:2 fiat justicia. zayzda, nurul azizah & sri wijayanti. "negara maritim indonesia, migrasi tidak teratur, dan hak pengungsi lintas batas" (2016) 3:02 insignia: journal of international relations. 144 | legal consequences of refugees' visa misuse to obtain indonesian citizenship this page intentionally left blank microsoft word 16760 published.docx indonesian journal of law and society (2020) 1:1 1-22 issn 2722-4074 | doi: 10.19184/ijls.v1i1.16760 published by university of jember, indonesia available online 31 march 2020 * corresponding authors’ e-mail: sekardaniaa@gmail.com political rights of the indonesian citizen possessing dual citizenship: a contextual analysis sekar dani ajeng adinda* university of jember, indonesia antikowati university of jember, indonesia rosita indrayati university of jember, indonesia abstract. the issue of citizenship is one part of the study of state studies or commonly referred to as state administration law. one element of state existence is citizenship (algemene staatslehre). in the context of citizenship, the issue of citizenship is critical because, in general, the state consists of three elements, namely the territory, people who are identical with citizens, and sovereign government as a constitutive element and the recognition of other countries as declarative elements. every citizen must have citizenship because it is an essential thing. after all, citizenship has a close relationship between the citizen and the country in which the citizen lives. these matters relate to citizens related to identity, rights, obligations, participation or participation, and shared social ownership. in addition, with citizenship, citizens automatically have legal protection wherever they are. having two citizenships is no longer a taboo for citizens and is likely to continue to develop in the future. the fact is that there are citizens aged 18 years or over who have dual citizenship, even though the ownership of dual citizenship should be limited. one of the rights of every citizen is the right to be elected and elected. however, there are still citizens who have dual citizenship. because of dual citizenship, approaching the general election confuses citizens of those who have dual citizenship but still wants to fulfill their rights in electing potential national leaders and also the right to lead indonesia. keywords: political rights, citizenship, dual citizenship. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 12/02/2020 reviewed: 14/02/2020 accepted: 10/03/2020 2 | political rights of the indonesian citizen possessing dual citizenship: a contextual analysis i. introduction in each country, there are three elements of the state, namely the territory, people, and the government in power as constitutive and declarative elements that constitute recognition from other countries. article 1 of the montevideo convention on right and duties of states of 1933 (montevideo convention 1933) explains that one of the conditions for the formation of a state is the existence of permanent residents. there are various terms related to citizens. citizens and residents mean different things, even though many interpret the same. citizens are residents in a country or nation based on their descent and birthplace who have full obligations and rights as a citizen of that country. in other words, citizens are supporters or members of a country.1 whereas article 1 number 1 of law number 12 of 2006 concerning citizenship states that citizens are "citizens of a country determined based on statutory regulations."2 article 2 of law number 12/2006 concerning citizenship states that "indonesian citizens are native indonesians and other nationalities endorsed by law as citizens."3 in this case, it can be concluded that what can be interpreted as citizens is a person who meets the requirements or qualifications as citizens. then not all people who are in indonesia can be said to be indonesian citizens. meanwhile moh. kusnardi and harmaily ibrahim stated that people who settled in a particular area related to the country could be said to be citizens.4 meanwhile, r.g. kartasaputra emphasized the obligation of citizens to comply with the law or uud 1945. it is arguable that everyone who was within the scope of that state was truly obedient and obeyed the constitution was a citizen, whereas people who live within the scope of the country concerned but are not obedient to their constitution are not included in the people. so it is clear that not every citizen in a country is a citizen. if someone does not have a citizenship, then the citizen does not have legal protection 1 bp. paulus, kewarganegaraan ri ditinjau dari uud 1945 khususnya kewarganegaraan tionghoa, (jakarta: pradnya paramita, 1983) at 42. 2 article 1 (1) law no. 12 of 2006 on citizenship. 3 article 2, ibid. 4 kartasaputra. sistematika hukum tata negara. (jakarta: bina aksara, 1987) at 1. 3 | indonesian journal of law and society from any country. persons without citizenship indeed encounter difficulties in obtaining an identity file and travel, which not only inhibits travel but also causes other problems in living everyday life and, in some cases, can cause prolonged detention for an individual. citizenship prevents people from fulfilling their potential and can have a devastating effect on social integrity and stability.5 so, to avoid the above, everyone must have citizenship in order to get recognition from the state. there are several ways to obtain citizenship, including: 6 because of birth, descent, through citizenship, through ordinary registration, and because of the expansion of territory. the government makes and regulates laws to determine the status of indonesian citizenship. the law is regulated and aims to prevent obstacles, from social problems to legal issues. these problems are anticipated because problems relating to citizens' status may occur in the domestic territory as well as activities related to countries. one example is the presence of several celebrities in indonesia from other countries that are currently dealing with immigration authorities because of their visas and citizenship status. moreover, there are also cases of the spread of drugs by black citizens in indonesia involving international networks. this includes criminal or criminal acts. thanks to the existing citizenship status arrangements, police officers have valid evidence to block, arrest, and return the person concerned to their home country.7 in the general explanation of law number 12 of 2006 concerning citizenship, there are 4 (four) ways to obtain indonesian citizenship, namely, because of birth, recognition, and appointment, application granted, and citizenship. in fact, to determine the citizenship status, it can be divided into 2, namely ius soli and ius sanguinis. in determining one's nationality, each country generally uses both principles. it is an effort to prevent the 5 http://www.unhcr.org/id/wp-content/uploads/sites/42/2017/05/melindungi-hakhak-orang-orang-tanpa-kewarganegaraan-bahasa-final.pdf (diakses pada tanggal 15 november 2018 pukul 13.40 wib). 6 jimly asshidiqie, pengantar ilmu hukum tata negara jilid ii, (jakarta: sekretaris jenderal dan kepaniteraan mahkamah konstitusi, 2006) at 145-148. 7 rowland bf kewarganegaraan. at 31. 4 | political rights of the indonesian citizen possessing dual citizenship: a contextual analysis occurrence of apatride and bipatride. the nationality of a person determined based on his place of birth is ius soli. for a country that adheres to the principle of ius soli, it does not see who or where the child's parents are from, the state only recognizes the child as a citizen if the child is born in the territory of the country itself. this principle allows a nation that is not limited by race, ethnicity, religion, and others. whereas ius sanguinis, means that a person's citizenship is determined based on his descendants. the citizenship of the child will be recognized by the country that adheres to this principle if the parents of the child have the country's citizenship status (seen from their offspring).8 while the principle adopted in law number 12 of 2006 concerning citizenship, indonesia, in terms of birth is the principle of ius sanguinis and also the principle of ius soli as an exception, while in terms of marriage, the principle adopted is the principle of equality and the principle of legal unity.9 according to law number 12 of 2006 concerning citizenship, children born from marriages of an indonesian citizen with a foreigner man, as well as children born from a marriage of a foreigner woman to an indonesian citizen, are equally recognized as indonesian citizens. then children born of mixed marriages will have dual citizenship. the definition of dual citizenship (bipatride) is a condition when a person has two legal citizenship status in different countries. the rules regarding dual citizenship are only in indonesian citizenship law, namely article 6 of law number 12/2006, namely "in terms of the citizenship status of the republic of indonesia for children as referred to in article 4 letter c, letter d, letter h, letter i, and article 5 results in a child having dual citizenship, after the age of 18 (eighteen) years or already married the child must declare to choose one of his citizenship. " in the new citizenship act, indonesia adheres to the principle of limited dual citizenship, which is different from the previous citizenship rules, which only adheres to the principle of single citizenship. limited dual citizenship means that those who can hold dual citizenship are 8 i nengah suantra, et al., hukum kewarganegaraan dan kependudukan (fakultas hukum universitas udayana denpasar). 2016 at 18-19. 9 ibid at 34. 5 | indonesian journal of law and society only children under 18 or not yet married. therefore it is said to be limited. so if someone who is 18 years old or has married must choose one of his citizenship, moreover, someone who is over 18 years old or has been married cannot have 2 (two) citizenship for any reason. if the child does not renounce one of their nationalities, it will result in the loss of indonesian citizenship as explained in article 23 of law number 12 of 2006, which is related to the loss of indonesian citizenship. based on article 6 of law number 12/2006 it is clearly stated that only children can hold dual citizenship status. however, there are still many people who are outside the provisions of article 6 also having dual citizenship, namely on the grounds of long stay abroad, doing education, working outside country, as well as having different nationality marriages (mixed marriages) in order to get the same rights in the country where they live. nevertheless, actually if outside the provisions of article 6 a person is still a dual nationality, then that person may lose indonesian citizenship.10 as a result of conditions that can cause a person not to choose one of his nationalities if the person has status has citizenship limited dual not been regulated further in the act. therefore, there is still a need for further provisions regarding the limitation of limited dual citizenship. indeed, if the child has two citizenship, he will get legal rights from both countries and cover the possibility of stateless or no citizenship for the child. this is the positive side of dual citizenship.11 so it is clear that citizens who have dual citizenship differ in their rights and obligations. one of the primary subjects regulated in each constitution that is in line with the modern state constitution is the rights and obligations of these citizens. as regulated in article 1 paragraph (1) of law number 39/1999 concerning human rights states that: human rights (hereinafter referred to as human rights) are a set of rights attached to the nature and existence of every human being as a creature of 10 kevin dariola anggita, 'anggita, kevin dariola. “status hukum warga negara yang berkewarganegaraan ganda menurut hukum kewarganegaraan indonesia.' at 33-34. 11 i nengah suantra, supra note 8 at 38-39. 6 | political rights of the indonesian citizen possessing dual citizenship: a contextual analysis god almighty and is a gift that must be respected, upheld, and protected by the state, law, government, and everyone, for the sake of honor and protection of human dignity.12 the 1945 constitution outlines human rights into the constitutional rights of every citizen. this inclusion asserts the rights of its citizens, as seen from the guarantee of human rights stipulated in article 28 aj of the constitution 1945.13 human rights in the arrangement, according to14aswanto,grouped into civil rights (civil rights), political rights (political rights), rights of economics (socio economic rights), and rights in the field of culture (culture rights ). the international covenant on civil and political rights (iccpr) stated that fundamental human rights and freedoms are classified into two types: first, the neo-derogable category, namely rights that are absolute and may not be reduced, even in an emergency. this right consists of; (i) rights to life; (ii) right to be free from slavery; (iii) the right to be free from detention because of failure in the agreement (debt); (iv) the right to be free from retroactive penalties, the right to be a legal subject, and to freedom of thought, belief, religion. the second type is the derogable category, namely the rights that may be reduced/limited by state parties. rights and freedoms included in this type include (i) the right to freedom of peaceful assembly; (ii) the right to freedom of association, including the formation and membership of workers; and (iii) the right to freedom of expression, including the freedom to seek, receive, and provide information with all kinds of ideas without regard to boundaries (whether through oral / written). in the case of reducing the obligation to fulfill the above rights, it can only be held if the reduction is proportional to the existing threat and not discriminatory, namely for the sake of; (i) maintaining public security or morality; and (ii) respecting the rights or 12 article 1 number (1) law number 39/1999 on human rights. 13 jimly asshiddiqie, hak asasi manusia dalam konstitusi indonesia, (jakarta: kencana prenada media group, 2005) at 85. 14 nur asmarani, teori hak asasi manusia (ham), jurnal hukum dan masyarakat, vol. 14, no 1, 2015 at 7. 7 | indonesian journal of law and society freedoms of others. moreover, the reduction of this obligation is only allowed for parties iccpr. it has been mentioned above that one of the rights for citizens who live in countries that embrace democracy as in indonesia, is a political right that is also part of the right to participate in the running of government in a country. the 1945 constitution regulates the existence of human rights as the constitutional rights of every citizen, both direct and indirect, because the general election is a means of democracy for a country that adheres to democracy. election means the election of people's representatives elected by the people to represent them in their participation in the state government's administration, which is also a political activity to accommodate the interests or wishes of the people. alternatively, it can also be called as conditio sine qua non. the election in the human condition as an individual citizen is a process of temporary surrender of political rights. this right is a sovereign right to participate in carrying out state administration.15 the responsibility for protection, promotion, enforcement, and fulfillment, as well as respect for the right to be elected and to vote is the responsibility of indonesia and shows that indonesia is legally bound so that every democratic country contains guarantees of human rights, including civil and political rights of every person or population in the state constitution. it has also been regulated in the indonesian constitution that those who have the most significant share in the election or fulfillment of political rights are the people as stipulated in article 1 paragraph (2), article 6a (1), article 19 paragraph (1), and article 22c paragraph (1) of the 1945 constitution. the provisions above indicate that there is an inherent legal guarantee for every indonesian citizen to exercise his right to vote. these provisions emphasize that all forms of legal products governing general elections should open up 15 miriam budiarjo, hak asasi manusia dalam dimensi global, jurnal ilmu politik, no. 10, 1990, jakarta at 37. 8 | political rights of the indonesian citizen possessing dual citizenship: a contextual analysis the most extensive possible space for citizens to exercise their right to vote in elections.16 article 21 of the universal declaration of human rights (udhr) stipulates that: (1) everyone has the right to participate in the governance of his own country, either directly or through the mediation of freely chosen representatives; (2) everyone has the right to an equal opportunity to be appointed to the government position of his country; (3) the people's will must be the basis of government power; this will have to be stated in honest periodic elections which are carried out according to general and equal suffrage, as well as by secret balloting or by other means which also guarantee freedom of voting ".17 article 27 paragraph (1) of the 1945 constitution stipulates that "all citizens must have equal position in law and government and must uphold the law and government without exception." article 28d paragraph (1) of the 1945 constitution stipulates that every person has the right to recognition, guarantee, protection, and certainty of law that is just and equal treatment before the law. then, article 28d paragraph (3) determines that every citizen has the right to have the same government opportunity. at the level of the law, law number 39/1999 on human rights regulates the suffrage in article 43: "every citizen has the right to be elected and to vote in elections based on equal rights through the direct, general, free ballot, confidential, honest, and fair under statutory provisions." however, there are still citizens of the country mentioned who still have two or more citizenship, which is commonly called dual citizenship. moreover, dual citizenship still raises questions for the government regarding the fulfillment of the rights that must be fulfilled, including political rights for every indonesian citizen. however, in fact, indonesia does not recognize 16 http://ditjenpp.kemenkumham.go.id/htn-dan-puu/2941-hak-politik-warga-negarasebuah-perbandingan-konstitusi.html (accessed on 18 november 2018 at 23.16 wib) 17 article 21 universal declarations of human rights. 9 | indonesian journal of law and society dual citizenship, except for children from mixed marriages, which can be said to be limited dual citizenship. this has been explained in law number 12 of 2006 concerning citizenship of the republic of indonesia article 6 states that: "in terms of the citizenship status of the republic of indonesia for children as referred to in article 4 letter c, letter d, letter h, letter i, and article 5 resulting in a child having dual nationality, after 18 (eighteen) years of age or already married the child must declare to choose one of his citizenship. " so indonesian citizens who have dual citizenship and are 18 years old or are married are required to choose one of their nationalities. if an indonesian citizen who has dual citizenship does not choose one of his nationalities, he will lose indonesian citizenship under article 23 letter b, which reads "indonesian citizen loses his citizenship if the person concerned does not refuse or does not renounce another nationality, while the person concerned get the chance for that. " and as explained in article 6 of law number 12/2006, in indonesia adopts no double citizenship, which means that indonesian citizens with dual citizenship cannot be fulfilled as indonesian citizens again, including their political rights. therefore, political rights for indonesian citizens with dual citizenship cannot be fulfilled if they are 18 years of age or have been married because, as explained above, namely in article 6 of law number 12/2006 concerning citizenship. if the indonesian citizen has violated article 6, which does not choose one of their nationalities, then the citizen will lose indonesian citizenship, which will automatically lose his rights, including his political rights in indonesia, and the citizen cannot fulfill his political rights in indonesia. ii. the right to choose indonesian citizens the constitution states that indonesia is a state of law whose primary component is the fulfillment, recognition, and guarantee of fundamental citizens' rights. the scope of constitutional understanding or constitutionalism based on the constitutional law and political science 10 | political rights of the indonesian citizen possessing dual citizenship: a contextual analysis literature consists of: the anatomy of power (political power) subject to the law, guarantee and protection of human rights, a free trial and independent, and accountability to the people (public accountability) as the main joint of the principle of popular sovereignty. according to ramdlon naning, human rights can be distinguished in: (1) personal rights; (2) economic rights or property rights; (3) political rights; (4) human rights to get equal treatment in law and government (right of legal equality); (5) social and cultural rights; and (6) human rights to obtain equal treatment before the law.18 human rights and democracy have very close links. democracy recognizes the birth of broad public participation in government, and public participation reflects the recognition of sovereignty. the creation of public empowerment is through the implementation of the public role in the realm of government. governance democratic, through the protection and fulfillment of human rights, has the ability to realize the people's welfare.19 this also goes hand in hand with the 1945 constitution's teachings that sovereignty is in the hands of the people and is fully implemented based on the 1945 constitution. the amendment stipulates that sovereignty remains in the hands of the people, and the authority, duties, functions given by the 1945 constitution are carried out by state institutions to the exercise of that sovereignty.20 however, it must be recognized that the path of choice has been based on the spirit of building modern democratic practices. bagir manan proposes several rights that are included in political rights, namely the right to freedom of association and assembly, the right to freedom of thought through oral and written, and the right to express opinions in public. 18 h.rosjidi ranggawidjaja, “pembatasan konstitusional hak warga negara untuk memilih dan dipilih dalam jabatan publik” jurnal konstitusi pskn-fh universitas padjajaran, volume ii nomor 2, november 2010, jakarta at 38. 19 majda el muhtaj, dimensi-dimensi ham mengurai hak ekonomi, sosial, dan budaya, (jakarta: pt rajawali pers, 2008) at 45. 20 janpatar simamora, “perlindungan hak memilih sebagai hak konstitusional warga negara," fakultas hukum universitas hkbp nommensen medan, 2013, at 124. 11 | indonesian journal of law and society the 1945 constitution, the laws and regulations have guaranteed the implementation of these political rights.21 political rights, in particular, the right of citizens to vote (right to vote) are guaranteed by several provisions in the 1945 constitution. several such provisions include article 27 paragraph (1) of the 1945 constitution stated that all citizens are at the same time in law and government and must uphold the law and governance with no exception. then there is also article 28d paragraph (1), which states that everyone has the right to recognition, guarantees, protection, and certainty of law that is just and equal treatment before the law. furthermore, no less important is the provision of article 28d paragraph (3), which states that every citizen has the right to have the same opportunity in government. several provisions in the constitution adequately show how the state guarantees and protects the constitutional rights of citizens, mainly about political rights in granting their voting rights in every direct democracy.22 related to the existence of these articles, in this case a firm statement was made by mahfud md that the constitution 1945does not contain material that substantially must exist in every constitution namely the protection of human rights23, but now it has increased significantly so that the formulation is complete and makes the 1945 constitution one of the fundamental laws must complete, which includes the protection of human rights.24 every citizen who will exercise the right to vote and be elected in each general election must be free from all forms of intervention, intimidation, discrimination and all forms of violence that can cause fear to channel their right to vote and be elected in each general election process because of these rights—recognized by the state constitution. the provisions governing are 21 https://eprints.uny.ac.id/23563/4/4.%20bab%20ii.pdf at 29. (accessed on 26 november 2018 at 10 am) 22 janpatar simamora, supra note 20 at 127. 23 moh. mahfud md, demokrasi dan konstitusi di indonesia: studi tentang interaksi politik dan kehidupan ketatanegaraan cet ii, (yogyakata: rineka cipta, 2000) at 141. 24 jimly asshiddiqie, menuju negara hukum yang demokratis, (jakarta: pt bhuana ilmu populer, 2009) at 433. 12 | political rights of the indonesian citizen possessing dual citizenship: a contextual analysis article 28c paragraph (2), article 28i paragraph (1), and paragraph (5) of uud 1945. while in law number 39 of 1999 concerning human rights is regulated in article 23 paragraph (1) and article 43 paragraph (1) which forms the legal basis for every indonesian citizen to have the freedom to participate in determining their representatives, both to sit in the legislative body and serve as the leadership of the executive body which is carried out through the general election. the loading of the right to vote in international instruments shows that this right has the potential to be a powerful weapon owned by a citizen in order to balance state policies that threaten the freedom of citizens to participate in elections. the right to vote is also a gateway for everyone to sit in government through equal and non-discriminatory treatment. therefore, discussing the right to vote is inseparable from two dimensions, namely the right to vote and the right to be elected. in the context of the right to vote and the right to be elected as political rights, the universal declaration of human rights is explicitly described in article 21 as follows: paragraph (1): everyone has the right to participate in the governance of his own country, both directly and through the mediation of representatives freely chosen representatives. paragraph (2): everyone has the right to an equal opportunity to be appointed to the government position of his country. paragraph (3): the people's will must be the basis of a government authority; this will must be stated in honest periodic elections, which are carried out according to general and equal suffrage, as well as by secret balloting or in ways that also guarantee freedom of vote. this provision can also be interpreted that everyone has the same rights and position in the government (government offices), and this is held through a democratic general election that takes place in general, direct, free, and confidential. position in government obtained through a general election is non-discriminatory. everyone (citizens) have the same rights and opportunities. every citizen has 13 | indonesian journal of law and society the same rights, and the implementation of those rights and obligations must be shared.25 the definition of "right to vote" is described in line with the notion of the "right to vote." the definition of "elected right" is described as the right to be elected as a member (regarding the house of representatives, etc.). the "right to vote" is described as the right of citizens to have representatives in the people's representative institutions, which are elements in a democratic electoral system. "voting rights" are divided into two, namely: "active voting rights" and "passive voting rights." "active suffrage" as the right to choose representatives in people's representative institutions. while "passive suffrage" is the right to be elected and sit in the people's representative institutions.26 the affirmation of the constitution of the political rights of citizens, contained in the covenant of civil and political rights, is affirmed article 25 "every citizen must have rights and opportunities, without any distinction as referred to in article 2 and without improper restrictions, to (a) participate in carrying out government affairs, either directly or through freely chosen representatives; (b) voting and being elected at periodic pure elections, and with universal and equal suffrage, and carried out by secret ballot to guarantee freedom of expression of the wishes of the voters; (c) gaining access to public services in his country based on equality in the general sense. the above contradicts a constitutional case. the constitutional court appeared with the question of whether voting is a right or an obligation? in its decision, the constitutional court stated that choosing and being elected was a "right" and not an obligation that could be imposed or could be imposed sanctions if not fulfilled. as a "right," citizens are given the freedom to use it or not. however, this does not mean that in its position as a constitutional right, the right to vote and be elected cannot be unlimited. in 25 a.gunawan setiardja, hak-hak asasi manusia berdasarkan ideologi pancasila, (yogyakarta: kanisius, 1993) at 117. 26 anton m. moelyono, kamus besar bahasa indonesia, (jakarta: departemen pendidikan dan kebudayaan republik indonesia, 1988) at 292. 14 | political rights of the indonesian citizen possessing dual citizenship: a contextual analysis practice, the right to vote and be elected is also limited by the laws; the constitutional court can review the laws under the constitutional limitation doctrine. one form of restriction on the right to vote is the provision governing members of the indonesian national army (tni) and the indonesian national police (polri) not to exercise their rights in elections. the spirit contained in government policies restricting the right to vote for members of the tni and polri is to maintain the neutrality of the tni and polri and not get involved in practical politics. the neutral attitude of members of the tni and polri is essential in order to carry out their duties to maintain the stability of defense, security, and state order. in its decision, the court agreed with government policy and stated that the limitation of the right to vote for members of the tni and polri was not in conflict with the constitution 1945. besides, the editorial chosen by the legislators is "not to use." this is a form of restriction and not a form of denial. mostly members of the tni and polri have the right to vote, but those rights are limited. at one time, this restriction policy would be revoked by the government, and members of the tni and polri could exercise their right to vote.27 another limitation is for indonesian citizens who have dual citizenship and are abroad. this is related to how the right to vote and be elected can be fulfilled. soepomo has stated that the state must ensure that no citizen has dual citizenship (dual citizenship or dubbele onderdaanschap) and those who do not have citizenship (staatloosheid). this must be regulated based on the system and legislation in indonesia. for this reason, soepomo proposed the basis of indonesian citizenship, namely: (1) ius sanguinis (principle of heredity) and (2) ius soli (principle territorial).28 the contents of the position as citizens are (1) only citizens have political rights, for example, the right to vote and be elected, and (2) only citizens have the right to be appointed to 27 bisariyadi, “hak pilih sebagai hak konstitusional," mahkamah konstitusional republik indonesia, at 9-10. 28 naskah komprehensif perubahan undang-undang dasar negara republik indonesia tahun 1945, buku viii warga negara dan penduduk, hak asasi manusia dan agama, jakarta, mahkamah konstitusi republik indonesia. 2010 at 14. 15 | indonesian journal of law and society state office. the status of a person's citizenship has two aspects, namely: legal aspects and social aspects, where citizenship is a legal status of citizenship, a complex of rights and obligations, especially in the field of public law owned by citizens and not owned by foreigners. however, indeed in indonesia, there are still many indonesian citizens who have dual citizenship, whether it is because of mixed marriages and working abroad. the practice in indonesia does not recognize dual citizenship as explained in article 23 letter b of law number 12 of 2006, namely that indonesian citizens who do not renounce other citizenship will lose their citizenship. moreover, according to article 6 of law number 12/2006, from that article, indonesian citizens do not recognize dual citizenship except for children under 18 (eighteen) years of age and not married. in addition to these provisions, the citizen must release one of his citizenship. however, there are still indonesian citizens who have dual citizenship who do not renounce the citizenship republic of indonesia's citizenship. furthermore, sometimes they still want to fulfill their rights in general elections in indonesia, namely political rights. citizenship is the membership of a person in a particular political unit (specifically the state) with which it carries the right to participate in political activities. in particular, citizenship is the membership of a person in a political unit to take part in political activities. someone with membership was called a citizen. citizenship is part of the concept of citizenship. in this sense, citizens of a city or district, because both are political units. in regional autonomy, citizenship is essential because each political unit will give its citizens different (usually social) rights. citizenship refers to a set of characteristics of a citizen. characteristics or attributes of citizenship include: ownership of individual rights includes the fulfilment of appropriate obligations, level of interest and involvement in public matters, and acceptance of fundamental social values. having citizenship means that a person has an identity or status in the national scope. having citizenship means getting several rights and 16 | political rights of the indonesian citizen possessing dual citizenship: a contextual analysis obligations that apply reciprocally with the state. he has the rights and obligations of the state. on the contrary, the state has the rights and obligations of that person. therefore someone makes him involved in participating in the life of his country. the right to vote for indonesian citizens with dual citizenship is still possible to be fulfilled but is limited. because based on article 6 of law number 12/2006 it has been explained that children aged 18 (eighteen) or married must choose one of their nationalities. whereas according to law number 24 of 2013 concerning population administration article 63 paragraph (1) indonesian citizens and foreigners who have permanent stay permits who are 17 (seventeen) years old or have been married or have been married are required to have a ktp (card) identity certificate), and paragraph (2) foreigners who follow the status of their parents who have permanent stay permits and are 17 (seventeen) years old must have a ktp. this means that for the 17-year-old citizen, he has a ktp, even though he has dual citizenship. because indonesian citizens with dual citizenship must declare their nationality after 18 years, so when he was 17 years old, he could still have an indonesian ktp. under article 198 of law number 7/2017 concerning general elections, the requirements to become voters in general elections are: (1) indonesian citizens who are already 17 (seventeen) years old or more are married or already married have the right to vote. (2) indonesian citizens, as referred to in paragraph (1) shall be registered 1 (one) time by the election organizer in the voter list. (3) indonesian citizens whose political rights have been revoked by the court do not have the right to vote. as a result, if compared between article 6 of law number 12 of 2006 and article 198 of law number 7 of 2017, it can be concluded that citizens who are dual citizens aged 17 years to 18 years as long as he still has an indonesian id card, he still has the right to choose in indonesia. and when he was 18 years old and did not choose one of his nationalities or did not choose 17 | indonesian journal of law and society indonesian citizenship, then he lost his indonesian citizenship automatically, he also lost his right to vote in indonesia. while article 201 paragraph (1) of law number 7 of 2017 concerning general elections mentioned as follows: (1) the government and regional governments provide population data in the form of: population aggregate data per sub-district as material for kpu in compiling the electoral districts for members of regency/city dprds; data on potential residents of election voters as material for kpu in compiling provisional voter lists; and data on indonesian citizens residing overseas as material for kpu in the preparation of electoral districts and provisional voter lists. article 201 paragraph (3) states that "data on indonesian citizens residing abroad as referred to in paragraph (1) letter c must be available and submitted by the minister of foreign affairs to the kpu no later than 16 (sixteen) months before the polling day sound." it is concluded that indonesian citizens who are abroad can still use their voting rights but are included in the provisional voter list. to participate in elections for indonesian citizens abroad, they must be eligible to vote abroad must be at least 17 years old and have an indonesian identity such as an indonesian passport or e-ktp. it can also be through the indonesian representative office in the local country, voting in the traveling ballot box, through the method, drop box. for example, the election officials come to the voters and use the post. this can be done when those who will choose to show or have an indonesian passport. indonesian representative offices abroad can be at the embassy or consulategeneral. so it is still possible for indonesian citizens who have dual citizenship who are abroad and are still under 18 years of age, still be able to exercise their voting rights in the ways and conditions described above. in contrast, related to the right to be elected for indonesian citizens with dual citizenship, there is the tiny possibility to be fulfilled. the requirements for one of the nominees to be elected are the requirements of a presidential candidate and vice presidential candidate. according to law number 42 18 | political rights of the indonesian citizen possessing dual citizenship: a contextual analysis of 2008 concerning election of president and vice president, indonesian citizens have been born since their birth. they have never received other nationalities of their own volition, residing in the republic of indonesia territory, and registered as voters. if seen one by one, the presidential candidates or candidates for vicepresident must indeed be indonesian citizens, and not bear dual citizenship status. moreover, must reside in the territory of the unitary republic of indonesia, which means that it is not currently abroad and has been confirmed not to reside abroad. so for indonesian citizens who have dual citizenship and are abroad, obviously they cannot be nominated as president or vice president. likewise, to run for another official, of course, must be a true indonesian citizen since his birth, not dual citizenship, and not residing abroad. in indonesia, there was a case of citizenship by a state official, namely the minister of energy and mineral resources (esdm), arcandra tahar. the president dismissed arcandra tahar through the minister of state secretary pratikno and a press conference at the president's office. this dismissal began with the discussion that said that arcandra tahar had obtained us citizenship in march 2012. article 22 paragraph (2) of law number 39/2008 concerning the state ministry states that there are several main conditions for serving as a minister, namely: a. indonesian citizens. b. fear god almighty. c. faithful to pancasila as the foundation of the country. the 1945 constitution of the republic of indonesia, and the ideals of the proclamation of independence. d. physically and mentally healthy. e. have integrity and a good personality. 19 | indonesian journal of law and society f. never been sentenced to prison based on a court decision that has obtained permanent legal force for committing an offense threatened with imprisonment of 5 (five) years or more. based on information obtained, arcandra tahar obtained us citizenship in march 2012. however, he retained his indonesian citizenship by renewing it at the consulate general of the republic of indonesia in houston, united states, in february 2012, which will be valid until 2017. at the time, when he offered to be a minister by the president, most likely, he did not claim to have foreign citizenship. meanwhile, arcandra has been dishonest about citizenship to the indonesian people for sure. when he has received the citizenship of the united states, the indonesian citizenship that he has is automatically released regardless of his obtaining foreign citizenship. then, in article 23 letter b, it is said that an indonesian citizen loses his citizenship if the person concerned does not refuse or renounces other citizenship, while the person concerned has the opportunity for it. it can be concluded that people who do not refuse citizenship by another country can be said to be dual citizenship. then indonesian citizens who have dual citizenship and who have been married for 18 years or will lose their indonesian citizenship. likewise, for those who have become state officials, he can be dismissed from his position. so to avoid this happening again, it is not possible for indonesian citizens who are dual citizens to nominate themselves in the general election. moreover, in the case of political rights, namely the right to be elected and elect citizens can still get the right to vote as long as he is 17 years old and not yet 18 years old and is also not married. however, if the citizen wants to obtain the right to be elected in politics, then the citizen must choose one of the citizenship held in this case, the citizen who has dual citizenship must be an indonesian citizen and never have another nationality of his own choice if he wants to obtain his right of choice. iii. conclusion 20 | political rights of the indonesian citizen possessing dual citizenship: a contextual analysis based on the problems that have been raised, it can be concluded that indonesia does not recognize dual citizenship, except for children from mixed marriages, which can be said to be limited dual citizenship. such limited dual citizenship is an exception. this has been explained in law number 12 of 2006 concerning citizenship of the republic of indonesia article 6 states that: "in terms of the citizenship status of the republic of indonesia for children as referred to in article 4 letter c, letter d, letter h, letter i, and article 5 resulting in a child having dual nationality, after 18 (eighteen) years of age or already married the child must declare to choose one of his citizenship. " so indonesian citizens who have dual citizenship and are 18 years old or are married are required to choose one of their nationalities. if the citizen does not choose one nationality, does not reject or not renounce another nationality, such a citizen will lose indonesian citizenship. thus, indonesian citizens with dual citizenship cannot be fulfilled as indonesian citizens again, including their political rights. regarding the right to vote for indonesian citizens with dual citizenship it is still possible to be fulfilled but limited. for citizens who are 17 years old, they already have an id card, even though they have dual nationality. furthermore, because indonesian citizens who are dual citizens must declare their citizenship after 18 years of age when he is 17 years old, he can still have an indonesian id card and be able to use his right to vote in elections before 18 years of age. however, if the citizen wants to obtain the right to be elected in politics, then the citizen must choose one of the citizenship held in this case, the citizen who has dual citizenship must be an indonesian citizen and never have another nationality of his own choice if he wants to obtain his right of choice. a suggestion based on this problem is the need to increase awareness of the importance of citizenship for every citizen so that there is no apatride. similarly, for dual citizenship, it needs to be emphasized that dual citizenship in indonesia is limited. because in indonesia, they do not recognize dual citizenship except those stipulated in the citizenship act. moreover, more clearly, sanctions if there are indonesian citizens with dual citizenship 21 | indonesian journal of law and society because, in the citizenship act, there are no further regulations related to sanctions against indonesian citizens with dual citizenship. in imposing the sanctions, it is also necessary to uphold human rights values and consider the sense of nationalism towards holders of dual citizenship, which can be used as a basis for sanctions against holders of dual citizenship. references anton m. moelyono, large indonesian dictionary, (jakarta: ministry of education and culture of the republic of indonesia, 1988). a. gunawan setiardja, human rights based on pancasila ideology, (yogyakarta: kanisius, 1993). bp. paul, indonesian citizenship observed from the 1945 constitution specifically chinese citizenship, (jakarta: pradnya paramita, 1983). jimly asshiddiqie, human rights in the indonesian constitution, (jakarta: kencana prenada media group, 2005). ______________, introduction to the law of state administration volume ii, (jakarta: secretary-general and registrar of the constitutional court, 2006). ______________, towards a democratic law state, (jakarta: pt bhuana ilmu popular, 2009). kartasaputra. systematic of constitutional law. (jakarta: bina aksara, 1987). majda el muhtaj, human rights dimensions of economic, social and cultural rights, (jakarta: pt rajawali pers, 2008). moh. mahfud md, democracy and constitution in indonesia: study of the interaction of politics and the state administration, (yogyakarta: rineka cipta, 2000). bisariyadi, "voting rights as constitutional rights", constitutional court of the republic of indonesia. 22 | political rights of the indonesian citizen possessing dual citizenship: a contextual analysis h. rosjidi ranggawidjaja. 2010. constitutional restrictions on the rights of citizens to vote and be selected in public position. constitutional journal of pskn-fh padjadjaran university. i nengah suantra, sh, mh et al., 2016. citizenship and population law (faculty of law, udayana university, denpasar). janpatar simamora.2013. protection of the right to vote as a constitutional rights of citizens. faculty of law, university of hkbp nommensen medan. kevin dariola anggita. 2018. legal status of dual citizens. university of jember. miriam budiarjo. 1990.human rights in the global dimension. journal of political science. manuscript comprehensive amendment to the 1945 constitution of the republic of indonesia, book viii citizens and residents, human rights and religion, jakarta, constitutional court of the republic of indonesia. nur asmarani. 2015. the theory of human rights (ham). journal of law and society. https://eprints.uny.ac.id/23563/4/4.%20bab%20ii.pdf (accessed on november 26, 2018). http://www.unhcr.org/id/wpcontent/uploads/sites/42/2017/05/melindungi-hak-hak-orangorang-tanpa-kewarganegaraan-bahasafinal.pdf (accessed on 15 november 2018). microsoft word 29226-ijls.doc indonesian journal of law and society (2022) 3:1 25-48 issn 2722-4074 | https://doi.org/10.19184/ijls.v3i1.29226 published by the university of jember, indonesia available online 19 march 2022 _____________________________ * corresponding author’s e-mail: p.listiningrum@ub.ac.id rights to access of public facilities in health services for people with disabilities muhammad dahlan brawijaya university, indonesia prischa listiningrum* brawijaya university, indonesia dio priagung wicaksana brawijaya university, indonesia abstract: in indonesia, the rights of people with disabilities (pwd) have not been fully fulfilled despite vigorous attempts to accommodate human rights for decades. indeed, the government is committed to fulfilling the pwd rights in pwd law 4/1997 and ratified the convention on the rights of persons with disabilities. in practice, the government could not fully fulfill the pwd rights by providing facilities in the health sector. in this context, the regency of tulungagung has not set any regulations governing the fulfillment of the pwd rights. this study aimed to assess the pwd rights to access public facilities in health sectors in the regency of tulungagung, following factors that impeded the fulfillment of these rights. the empirical method and socio-legal analysis probed a gap between law in book and context, elucidated in three main findings. first, the pwd rights in the regency of tulungagung to public facilities in health service sectors have not been fully fulfilled since public facilities are not pwd-friendly. second, most health cares in this region have no staff capable of communicating and handling pwd. third, the absence of the regulations governing the pwd rights becomes another factor leading to discrimination, coupled with the paucity of knowledge of how to interact with the pwd properly. human resources and economic issues served as problems in this case. most pwd in tulungagung regency lived in poor economic conditions due to a lack of available jobs that could be accessed. therefore, the local government should take a more specific measure to fulfill public health access for pwd by allocating more budget, training the health care personnel, and enacting by-laws. keywords: human rights, people with disabilities, public facilities, health services. copyright © 2022 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 13/01/2022 reviewed: 19/01/2022 revised: 08/03/2022 accepted: 09/03/2022 how to cite: dahlan, muhammad, et al., “rights to access of public facilities in health services for people with disabilities” (2022) 3:1 indonesian journal of law and society 25-48, online: <https://doi.org/ 10.19184/ijls.v3i1.29226>. 26 | rights to access of public facilities in health services for people with disabilities i. introduction despite decades of attempts to meet human rights worldwide, people with disabilities (pwd) in indonesia have not adequately received their rights. in the international arena, the world health organization changed the disabilities perspective from a medical to a social perspective that focuses more on social inhibitions that pwd experienced.1 in 2007, the united nations declared the convention on the rights of persons with disabilities to initiate the disabilities rights movement.2 it aimed to nurture global respect for the rights of pwd, with 164 countries signing this convention and 184 ratifications (per 5 january 2022).3 in southeast asia, malaysia represents an experience of pwd's socioeconomic exclusion issues.4 thailand is another example that faces a problem with fulfilling pwd rights, especially within the right to education framework.5 at the outset, the indonesian government took an initial step to regulate the fulfillment of the pwd rights in pwd law 4/1997. then, the government ratified the convention on the rights of persons with disabilities into law 19/2011 and replaced pwd law 4/1997 with law 8/2016. the change was made because law 4/1997 assumed pwd needed to be pitied despite the increasing issues. it could not answer various issues related to respect, protection, and fulfillment of pwd rights.6 both rules represent the national commitment to fulfilling pwd rights in indonesia. 1 katerina kazou, “analysing the definition of disability in the un convention on the rights of persons with disabilities: is it really based on a ‘social model’ approach?” (2017) 2017:23 international journal of mental health and capacity law 25 at 27. 2 united nations, convention on the rights of persons with disabilities (crpd). 3 tavee cheausuwantavee & chomanad cheausuwantavee, “rights, equality, educational provisions and facilities for students with disabilities in thailand: legal and practical perspectives over the past decade” (2012) 23:1 disability cbr & inclusive development 70 at 71. 4 m rezaul islam, “rights of the people with disabilities and social exclusion in malaysia” (2015) 5:2 international journal of social science and humanity at 176. 5 cheausuwantavee & cheausuwantavee, supra note 3 at 87. 6 frichy ndaumanu, “hak penyandang disabilitas: antara tanggung jawab dan pelaksanaan oleh pemerintah daerah” (2020) 11:1 jurnal ham 131 at 133. 27 | indonesian journal of law and society two perspectives question why pwd is likely to be marginalized in society and get minor attention from the government.7 these two perspectives stem from individual and non-individual viewpoints.8 the first is called "individual perspective." public regard pwd as a form of abnormality resulting from individual glitches. this perspective is sometimes inextricable from a local myth. however, the second called the "nonindividual perspective" does not see disabilities as a result of individual setbacks but a problem of social structure. while human rights are more focused on fulfilling the pwd rights, it may consider societal changes on the stigmatization of disabilities as an abnormality.9 the recent publication argued that legal protection from local government is essential to fulfilling the rights and services of people with disabilities.10 eta yuni investigated how the pwd rights in the regency of semarang were fulfilled. however, a lack of school infrastructure designed for students with disabilities existed as a problem in fulfilling their rights.11 rahma diana argued that public facilities made available for pwd were not yet optimal in the district of tulungagung, the regency of tulungagung.12 alia harumdani concluded that discrimination and low education level presented barriers to career opportunities and proper living standards for the pwd.13 frichy ndaumanu shared the same opinion, suggesting by-law 7 ari pratiwi, disabilitas dan pendidikan inklusif di perguruan tinggi (malang: ub press, 2018) at 3. 8 ibid. 9 ibid at 5. 10 aprilina pawestri, “hak penyandang disabilitas dalam perspektif ham internasional dan ham nasional” (2017) 15:1 era hukum at 180. 11 eta yuni lestari, slamet sumarto & noorochmat isdaryanto, “pemenuhan hak bagi penyandang disabilitas di kabupaten semarang melalui implementasi convention on the rights of persons with disabillities (cprd) dalam bidang pendidikan” (2017) 28:1 integralistik at 8. 12 nuzul rahma diana, aksesibilitas bagi penyandang disabilitas pada bangunan umum berdasarkan peraturam daerah jawa timur nomor 3 tahun 2013 dan fikih syasah (studi kasus bangunan umum di kecamatan tulungagung) iain tulungagung, 2020) [unpublished] at 126. 13 alia harumdani widjaja, winda wijayanti & rizkisyabana yulistyaputri, “perlindungan hak penyandang disabilitas dalam memperoleh pekerjaan dan penghidupan yang layak bagi kemanusiaan” (2020) 17:1 jurnal konstitusi 197 at 220. 28 | rights to access of public facilities in health services for people with disabilities should highlight the local responsibilities over the pwd rights.14 therefore, two critical problems impeding pwd are the regulatory aspect and facility support. this study aimed to assess how local governments fulfill the pwd rights with its specific focus on fulfilling the right to public facilities for pwd in the health sector. it examined the link between the government's measures and pwd from a human rights perspective. this study consisted of three parts of the discussion. it consisted of the general elaboration of the research site, the fulfillment of the rights to access public facilities in health service sectors for the pwd in the regency of tulungagung by observing eleven health centers in the regency, and the impeding factors in the measures of fulfillment. ii. methods this research used empirical and socio-legal approaches, departing from investigating social behavior regarding how they interact and live in society.15 these approaches aimed to identify and conceptualize the law as a real and functional social institution in terms of how the law is in practice at society.16 research data were taken from observation investigating how the pwd rights access public facilities were met in eleven health centers in the regency of tulungagung. interviews involved the representation of pwd and the authorities of the health service center in the regency, followed by qualitatively analyzing the data.17 14 frichy ndaumanu, “hak penyandang disabilitas: antara tanggung jawab dan pelaksanaan oleh pemerintah daerah” (2020) 11:1 j ham 131 at 148. 15 bambang sunggono, metodologi penelitian hukum (jakarta: rajawali pers, 2016) at 43. 16 soerjono soekanto, pengantar penelitian hukum (jakarta: penerbit universitas indonesia (ui-press), 2006) at 51. 17 muhaimin muhaimin, “metode penelitian hukum” in (mataram: mataram university press, 2020) at 105. 29 | indonesian journal of law and society iii. tulungagung regency: an overview the regency of tulungagung is part of the province of east java. it covers 1,055.65 km2 of land, with 19 districts, 271 villages/sub-districts, 738 hamlets, 2032 community associations (commonly referred to as rukun warga or rw), and 5668 neighborhood associations (commonly referred to as rukun tetangga or rt). this regency is passed through by rivers, accounting for 2.2% of the total land of east java. the regency has the administrative borders of the regency of kediri in the north and the regency of blitar in the east.18 it borders the indian ocean in the south and the regency of trenggalek in the west.19 the regency of tulungagung is home to 1,043,182 inhabitants, with 508,621 males and 534,561 females.20 the department of religion of the regency reported that most people in tulungagung are muslims, with the rest being christian, catholic, buddha, hindu, and others.21 despite this religious diversity, people rarely have inter-religion conflicts in the regency, in line with the regency's motto "ayem tentrem mulyo lan tinoto"—safe, peaceful, noble, and in order. health service development has been intended to provide health services to all equally. measures to provide excellent services involve the health facilities. according to international hospital federation, the regency has 32 community health centers and 11 hospitals, including dr. iskak hospital, which earned recognition for its best services in 2019.22 to date, this regency has 32 community health centers spreaded in balesono, bandung, bangunjaya, banjarejo, beji, bendilwungu, basole, besuki, boyolangu, campurdarat, dono, gondang, jeli, kalidawir, 18 badan pusat statistik kabupaten tulungagung, kabupaten tulungagung dalam angka 2021 (tulungagung: bps kabupaten tulungagung, 2021). 19 ibid. 20 jumlah penduduk (jiwa) 2018-2020, by badan pusat statistik kabupaten tulungagung (tulungagung: badan pusat statistik kabupaten tulungagung, 2021). 21 kabupaten tulungagung, supra note 18 at 235. 22 adhar muttaqin, “mengintip layanan rsud terbaik di dunia rsud dr iskak tulungagung”, detikhealth (2021), online: <https://health.detik.com/beritadetikhealth/d-4783805/mengintip-layanan-rsud-terbaik-di-dunia-rsud-dr-iskaktulungagung>. 30 | rights to access of public facilities in health services for people with disabilities karangrejo and kauman. the health centers are also available in kedungwaru, ngantru, ngunut, pagerwojo, pakel, pucanglaban, pucung, rejotangan, sembung, sendang, simo, sumbergempol, tanggunggunung, tiudan, tulungagung, and tunggangri. in addition, the regency has 11 hospitals, mentioned in the table below: no. hospital name 1. dr. iskak hospital 2. bhayangkara hospital 3. orpeha hospital 4. era medika hospital 5. madinah hospital 6. fauziah hospital 7. amanda hospital 8. trisna medika hospital 9. citra sehat hospital 10. muhammadiyah bandung hospital 11. satiiti prima husada hospital table 1. hospitals in the regency of tulungagung23 according to the social agency at the regency of tulungagung, there were 653 pwd in 2020. this number was low since the regency census of people with disabilities is still underway.24 the following is the list of disabilities in the regency of tulungagung: people with disabilities in 2020 (provisional) disability number quadriplegic 131 ex-leper/chronic disease 11 multiple disabilities 134 mentally ill 61 autism 18 deaf 46 speech impaired 5 low vision 5 totally blind 69 23 rumah sakit kabupaten tulungagung, by dinas kesehatan kabupaten tulungagung (tulungagung: dinas kesehatan kabupaten tulungagung, 2021). 24 data penyandang disabilitas di kabupaten tulungagung, by dinas sosial kabupaten tulungagung (tulungagung: dinas sosial kabupaten tulungagung, 2020). 31 | indonesian journal of law and society slow learning 33 mentally disabled 105 down syndrome 35 total 653 table 2. people with disabilities in 2020 (provisional)25 a. association of people with physical disabilities (percatu) pwd in tulungagung regency formed an organization to empower pwd and provide moral support to each other. this organization is called the association of people with physical disabilities (persatuan cacat tubuh percatu). percatu is an organization under which pwd is united, headed by didik prayitno. it was founded in 2002 to accommodate and organize physically disabled people by providing training, teaching them skills, and delivering specified and moral counseling. this organization departed from the situation where pwd are often stigmatized because the public often saw disability with disdain. those with disabilities had no valuable skills that they were physically impaired and incapable of performing activities. therefore, this situation requires counseling and training to let them learn new skills for broader acceptance in the community and live a 'normal' life like others.26 at the interview, about 60 active members had physical disabilities in percatu in the regency of tulungagung. didik further defined that pwd suffers from dysfunctional body parts, possibly due to polio, amputation, and accident. pwd law 4/1997 was officially revoked after pwd law 8/2016 was passed. it was deemed to be no longer relevant to the pwd conditions. this replacement marked the changing term' penyandang cacat' or more likely to sound like "handicapped people" in english in its use in law to the term 'penyandang disabilitas,' more likely dubbed as 'people with disabilities' in english. this changing term does not spark disagreement for the organizations of people with disabilities that still use the term 'cacat' or 'handicapped' in their organizations, including percatu in tulungagung. 25 ibid. 26 didik prayitno, penyandang disabilitas dan percatu tulungagung (2021). 32 | rights to access of public facilities in health services for people with disabilities in terms of the use of the term 'cacat tubuh' or 'physically handicapped', i do not see any administrative problem necessarily arising following the effectuation of the law concerning people with disabilities, revoking the previous law concerning handicapped people. i have consulted it with the representatives of badan kesatuan dan politik (kesbangpol) and others. percatu existed before the law concerning people with disabilities was passed, but for your information, the members are still referred to as people with disabilities. changing the organization's name will require another lengthy permit issuance process, involving central to local governments."27 in the knowledge of laymen, these two terms referring to those with disabilities may not appear to be significant, but not for pwd believing that these two different terms have their positive and negative senses. didik, the organization's chairperson and disabled, hopes that the term "handicapped people" should no longer be used since he believes it worsens the sense and discriminates their existence. however, the term 'difable' in bahasa or people with disabilities in english is deemed to be more appropriate, or this appropriateness can apply with more specific terms according to the kinds of disabilities such as tunarungu (deaf), tunanetra (blind), or tunawicara (speech impaired). didik recalled that the data showing the numbers of people with disabilities in the regency of tulungagung was a bit unreliable, "the data from the social agency of the regency only represents the data obtained from facilitators of the pwd, not representing all pwd in the regency and not all were recorded, while the real number of pwd residing in remote areas accounted for 7000 people. the 600 (based on the data from a social agency) only represents those living in the city."28 in march 2020, didik held a meeting involving the members of the regional house of representatives of the regency of tulungagung, where he voiced all the desires of the pwd of the whole regency, expecting that 27 ibid. 28 ibid. 33 | indonesian journal of law and society solutions be outlined in a by-law of the regency of tulungagung concerning people with disabilities. didik explained the following matters in the meeting, such as accessibility to green open space in the town square. for example, pwd with wheelchairs and crutches have difficulty entering the park since no ramps are available. buildings in the regency of tulungagung mostly have stairs that connect floors, such as the building of the regional house of representatives and the local government building. mosques primarily provide stairs for access. the ablution chambers bordered with a water pool put pwd at risk of slipping, coupled with a slippery bathroom floor. special access and ablution chambers for pwd are required. public services serving identity cards and family cards, administrative processing, and tax services should provide special sections separated from those for non-pwd. people with disabilities should receive special attention in health and medical services and checkups, while people with disabilities only have access to non-pwd. regarding the development of the by-law on pwd in the regency of tulungagung, didik has seen no progress made in the provision of pwd -friendly facilities so far. he said: "perhaps the fund was diverted to handling covid-19, let us see if the progress is real next year."29 following the research observation, no health service centers in the regency have human resources mastering a sign language, contrary to what didik expected: "it is true, both officials and public must hold a clear communication, not to mention the communication with deaf and speech impaired persons. poor communication will lead to poor services for the members of the public. thus, the existence of those mastering sign language needs to be taken into account, recalling that the deaf and the speech-impaired persons also deserve services like non-pwd."30 didik added a statement that the local government should consider the grievances of pwd more. they also should give solutions to what the pwd 29 ibid. 30 ibid. 34 | rights to access of public facilities in health services for people with disabilities voiced, recalling that those with disabilities in the regency are usually weak in their economy, worsening their productivity daily when the facilities that support their conditions do not exist. iv. facilities for people with disabilities in health sectors in tulungagung ten community health centers and dr. iskak hospital in the regency of tulungagung were picked by looking at public facilities for pwd in health services, and the places where the observation took place in some healthcare centers, inter alia, puskesmas kauman, puskesmas sumbergempol, puskesmas kedungwaru, puskesmas rejotangan, puskesmas sembung, puskesmas ngunut, puskesmas tulungagung, puskesmas gondang, puskesmas boyolangu, puskesmas gondang, puskesmas beji, and dr. iskak hospital. the above observation brought the following results: a. entrance ten community health centers provided ramps and stairs, but some ramps had slippery surfaces. some buildings covered the ramps with rubber mats, but not all surfaces were covered. slippery surfaces could cause a wheelchair, even a normal pedestrian, to slip on a wet surface. however, some health centers had ramps that rose gradually with rubber flooring. thus, such ramps are safe to use despite water splashes. all entrances in all locations observed were sufficiently wide for wheelchair access or other walking equipment (with minimum width ranging from 80-90 cm), but, on occasions, some entrance space was blocked and seemed narrower than it should be. for example, from our observation in sembung, sumbergempol, and tulungagung community health centers, 30% of entrance space was taken for particular purposes facilitating the covid-19 vaccination program. about 50% of the entrance in sumbergempol health center was blocked by a long line of people queuing for the covid-19 swab test. this crowd at 35 | indonesian journal of law and society the entrance possibly causes no problems for normal people, but not for the disabled, especially those on wheelchairs and other assisting equipment. an entrance should be user-friendly, where it can easily shut and open. most entrances in dr. iskak hospital use automated doors. however, some other sections, such as policlinics, still provide conventional twin and pushand-pull doors. all entrances connecting buildings and rooms have met the 90 cm width standards.31 b. handrails almost all health centers provide handrails, although they are not effectively applied and less valuable. in boyolangu, gondang, and ngunut community health centers, handrails are primarily provided at the entrance that leads to the main building. as found in observation, in kauman health center, handrails were blocked by queues of patients. a staff recalled that before the pandemic, the handrails were easily used. however, the pandemic seemed to force people to stand at least one meter apart, and this situation set chairs too wide from one another, taking up other premises. sembung, ngunut, and tulungagung health centers provide handrails in toilets useful for patients, the elderly, and pregnant women. handrails are vital for pwd, pregnant women, and the elderly. handrails are commonly found along corridors that connect buildings and sections in a hospital, and dr. iskak hospital has a significant number of corridors and connecting halls. however, handrails are provided at the entrance, but not at all the corners. c. toilet all the health centers observed were found to have no toilets specially designed for people with disabilities; toilets were bare of symbols for pwd. among the ten health centers observed, only boyolangu and tulungagung health centers have provided flush toilets. in contrast, ngunut and sembung health centers only provided flush toilets (as opposed to squatting 31 regulation of the minister of public works 30/prt/m/2006 c ii. 36 | rights to access of public facilities in health services for people with disabilities toilets) for women. all the ten health centers have fairly wide access that connects rooms for people with wheelchairs, but not the toilet spaces that are not spacious enough. most toilets involve raised surfaces, and the floor was slippery with water splashes. all the door locks function appropriately and are easily used. people with disabilities need toilets that are specially designed. hospitals should have specially designed toilets for pwd separated from conventional toilets. dr. iskak hospital provides flush toilets separated based on sexes with the comfortable floor but without handrails. however, special toilets for pwd in the hospital were not separately available. d. wheelchair wheelchairs were available in all ten health centers but not significantly since most only had two wheelchairs. a person in charge of the health center confirmed that several patients usually came with their wheelchairs, while the wheelchairs were temporarily intended to accommodate patients' recuperation. wheelchairs were available by the entrance to the building, but some wheelchairs were set at the point that was not accessible, causing difficulty for the researcher to document them. ngunut health center, also receiving inpatients, is one of the centers designated to take covid-19 patients. in this observation, the wheelchairs were placed at the quarantine section of the health centers, with no easy access to the wheelchairs. as the biggest hospital in the regency of tulungagung, dr. iskak hospital provides wheelchairs in almost every corner, including entrance to inpatient wards. the wheelchairs are well taken care of due to the frequent use by patients, the elderly, pregnant women, and pwd. e. parking lot a parking lot specially designed for the pwd is another aspect commonly overlooked in the government's health services. at the same time, several pwd can still ride a motorbike or even drive a car independently. a 37 | indonesian journal of law and society specially designed parking lot for pwd allows them to access health service facilities and makes them feel more respected. lack of land for a parking lot is still an issue in most health centers in tulungagung, leading to a paucity of parking lots for pwd in several health centers such as sembung and tulungagung. some patients' vehicles were sometimes parked along the road, causing congestion. with a spacious parking lot, dr. iskak hospital provides a specially designed parking lot for pwd, in line with the regulation of the minister of public works and public housing of the republic of indonesia number 14 of 2017. this parking lot has a 60-meter maximum space from the entrance and has enough space for wheelchair users for their vehicles. symbols asserting that the space is for the pwd are also available, but it does not stop non-pwd from irresponsibly using this parking space, adding that "it will not take long." f. audio visual information most health centers announce information on a microphone, but the rest spread information without the help of a microphone. several health centers also installed monitors, but they were out of order at observation. tulungagung health center also provides touch screen computers to enable patients to access information and report services. this facility is vital for deaf and speech-impaired people information is passed to patients in dr. iskak hospital through audiovisual facilities with lcd screens and loudspeakers at a counter where patients queue in waiting rooms. the loudspeaker, however, seemed not to reach the ears of all people waiting to be called. the hospital also provides computers to assist patients in making an appointment with a gp and administering health security programs. g. home visit facilities diana, the head of the kedungwaru community health center, believed that she rarely or never saw patients with disabilities in all community health centers in the regency of tulungagung. she added that it is 38 | rights to access of public facilities in health services for people with disabilities probably due to the lack of pwd -friendly facilities provided at health centers, compared to the number of pwd visiting the hospital. despite the distance, pwd prefer visiting the hospital to local health centers. to tackle such an issue, all health centers in the province of east java initiated a door-to-door counseling program, often dubbed as kopiku. diana and endah, the head of sumbergempol health center said: "we have seen almost none of the patients with disabilities, or, if so, it would never be more than ten patients for home visit patients. a home visit is also performed for those with disabilities and others who need this service in the kopiku scheme. kopiku is available in each village for which nurses work to visit patients with tb, mental illnesses, hypertension, diabetes, and so on."32 "we serve patients at the health center, but sometimes we visit those not capable enough to make their way to the center." 33 in april 2020, dr. iskak hospital officially provided home care and telemedicine, where patients could contact available numbers to request a home visit. the doctor can communicate with the patient or the patient's family by using a video call facility to determine the patient's progress. (8) starting from the common health examination to delivering med's to patients just by calling the number that has been provided. this facility is for patients with chronic diseases and mental illnesses, the elderly, and pregnant women who have difficulty visiting the hospital. h. availability of special staff none of the staff in the health centers where this research took place understood sign language since there is no regulation requiring each center to have a staff understanding sign language, as diana said: 32 diana diana, pemenuhan hak-hak penyandang disabilitas di sektor layanan kesehatan di kabupaten tulungagung (2021). 33 endah endah, pemenuhan hak-hak penyandang disabilitas di sektor layanan kesehatan di kabupaten tulungagung (2021). 39 | indonesian journal of law and society "this health center does not have a staff who can perform sign language, and i am not sure myself if there is any regulation that makes it compulsory."34 "most patients with disabilities, such as deaf and speech-impaired persons, brought along their relatives or family members to help them translate what they intended to say."35 the researcher believes that this contravenes the principle of independence that should serve as the basis of meeting the facilities for pwd. gondang health center once received a patient of a road accident from ponorogo who happened to be speech impaired. "we had difficulty getting information from the patient since no one understood the language and no relatives or family members were around, but thank god we understood little what the patient intended to say, and the family members turned up at last."36 although the relatives of the pwd could be reliable to some extent, the availability of human resources understanding sign language must as part of facilities available to support pwd in health centers. a person in charge of public relations in dr. iskak hospital confirmed that no one of 1000 health workers and other staff understands the sign language. v. impeding factors several factors were found to impede the fulfillment of facilities for pwd at health centers. how vital are peraturan daerah or by-laws to fulfill pwd rights? attitude on how society and government interact with pwd. last, it is about human resources and the economic situation. 34 diana, supra note 32. 35 ibid. 36 galih galih, pemenuhan hak-hak penyandang disabilitas di sektor layanan kesehatan di kabupaten tulungagung (2021). 40 | rights to access of public facilities in health services for people with disabilities a. regulations these are related to the power conferred by the 1945 constitution of the republic of indonesia, where the participation of the members of the public and the variety of regions serve as fundamental principles to back up regional autonomy.37 these two principles should be implemented into government authority due to local autonomy and local regulation-making. whether a legislative product will be appropriately enforced will depend on how it is implemented in the by-law. failure to understand and the incapability to enforce legislative products down from central government fail national legislative products.38 the power to set by-law is outlined in article 236(1) of law 23/2014, stating, "to run local autonomy and co-administration tasks, regional areas form of by-laws." the by-law plays a role in settling disputes faced by local governments due to autonomy and regional development in social problems in society.39 although lower than presidential regulations, by-laws are deemed the most effective in their proximity to the public members due to a limited scope of regional areas. the function of the by-law is to solve issues encountered by the local government due to autonomy and regional development that represent social problems. moreover, by-laws can also function as an instrument to implement regional autonomy and coadministration tasks, as delegated legislation to further regulate the upper laws, accommodate the uniqueness and diverse regions, and facilitate the aspiration of local people.40 37 reynold simandjuntak, “sistem desentralisasi dalam negara kesatuan republik indonesia perspektif yuridis konstitusional” (2016) 7:1 jurnal de jure at 66. 38 jumadi jumadi, “kedudukan dan fungsi peraturan daerah (perda) kabupaten/kota sebagai instrumen otonomi daerah dalam sistem perundang-undangan di indonesia” (2018) 1:1 jurnal hukum unsulbar 27–40 at 34. 39 abd salam, “kedudukan fungsi peraturan daerah (perda) sebagai bagian dari hukum nasional” (2019) 4:5 plenojure 1–12 at 12. 40 direktorat jenderal peraturan perundang-undangan, direktorat fasilitasi perancangan peraturan daerah & kementerian hukum dan hak asasi manusia republik indonesia kementerian hukum dan hak asasi manusia republik indonesia, panduan praktis memahami perancangan peraturan daerah (jakarta: direktorat jenderal peraturan perundang-undangan, 2009) at 8. 41 | indonesian journal of law and society in terms of people with disabilities, article 27(1) of pwd law 8/2016 states that central and local governments should set a plan, implement, and evaluate the execution, recognition, protection, and fulfillment of the rights of people with disabilities.41 without such a regulation, those functions will not work appropriately. similarly, the absence of by-law on pwd in the regency of tulungagung fails the enforcement of law 8/2016. despite the regulation of east java number 3/2013 on protection and services for people with disabilities, regencies/municipalities in the province represent different backgrounds in the economy, society, geography, human resources, and cultures. at the provincial level, by-law regulates the protection and services provided for pwd in east java, by-law 3/2013. moreover, this regulation is further regulated by governor regulation 125/2016, which states how to implement the by-law in technical aspects. nevertheless, there is a lack of certainty about how the provincial government works in collaboration with the regional level. at least, article 5 of by-law 3/2013 mentions that the by-laws become guidelines for the regional government to implement policies and protect services for pwd. the fulfillment of the rights of pwd in the regency of tulungagung refers to the consideration that suggests respecting human values as outlined in article 2 of human rights law 39/1999. indonesia upholds human rights as a vital element of the state, and enforcing human rights is a shared responsibility given by central and local governments; both are responsible for protecting and developing human rights.42 protecting and manifesting human rights may take regulation-making at central and local levels by prioritizing human rights as the fundamentals of regulation-making. in addition, human rights should also be considered in the development at the central and local levels. pwd in indonesia come from families of low economies, including those residing in the regency of tulungagung. most of them have difficulty 41 undang-undang nomor 8 tahun 2016 tentang penyandang disabilitas. 42 johan jasin, penegakan hukum dan hak asasi manusia di era otonomi daerah, cetakan pertama ed (sardonoharjo, ngaglik, sleman, yogyakarta: deepublish, 2019) at 197. 42 | rights to access of public facilities in health services for people with disabilities making ends meet, coupled with the stigma suggesting that pwd cannot perform helpful activities. with proper training intended to teach them job skills, people with disabilities are expected to perform their jobs. thus, supervision that serves as an instrument of by-laws to help eliminate discrimination among pwd in service sectors, careers, law, and public facilities is required. more specific measures should to be taken to establish coaching and supervision to put the by-law into effect. this coaching is intended to facilitate the empowerment of local autonomy.43 this coaching may also involve educating the public about how to interact with pwd appropriately, encouraging people with disabilities to actively participate in regional development, supporting mass organizations for pwd, and providing training for government and non-government institutions. indeed, supervision is critical to keep the enforcement of by-laws on track or to keep it from not being implemented at all. this supervision involves teams of supervisors on how the rights to facilities for pwd are fulfilled in health, education, political sectors, and others. furthermore, sanctions are equally vital. sanctions are intended to raise the effectiveness of by-laws and adjust the violations of by-laws subject to sanction imposition.44 article 238 (1) of local government law 23/2014 asserts that by-laws could set forth the provisions regarding the imposition of coercing levies in the enforcement/implementation of the regulation. these levies are imposed either fully or partially on violators according to legislation. article 238(3) and (3) of law 23/2014 could set forth sentencing, while article 238(4) of law 23/2014 states that by-law may set forth administrative measures as sanctions. they are oral warning, written warning, temporary termination of operation, termination of operation stages, license revocation, permanent license revocation, fines, and/or other administrative sanctions. sanctions can be imposed on the public, government, and non-government 43 husin ilyas, “pembinaan dan pengawasan pemerintah pusat dalam rangka penyelenggaraan pemerintah daerah berdasarkan undang-undang pemerintah daerah” (2012) 04:04 jurnal bina praja 273–280 at 273. 44 suharyo suharyo, “pembentukan peraturan daerah, dan penerapan sanksi pidana serta problematikanya” (2015) 4:3 rechtsvinding 431 at 442. 43 | indonesian journal of law and society institutions due to violations of regulations regarding people with disabilities or the complete absence of regulations. b. attitude pwd have the right to be free from discrimination. although provisions regarding anti-discrimination for people with disabilities are outlined in several laws, pwd are discriminated against in society.45 generally, the term 'cacat' (closely referring to 'handicapped' in english) as inappropriate since this term could generally refer to 'flawed,' which contravene the principle of humanity. however, this term is often heard with a paucity of knowledge among the locals in tulungagung. other terms such as 'budeg,' another inappropriate term for deaf, and 'gendeng,' another term for 'mentally ill,' are also often used to refer to those with such disabilities. these references may not serious issues, but they could offend the people concerned and trigger reluctance among pwd to interact with others. the fifth part of rights to justice and legal protection of article 9 of pwd law 8/2016 states that people with disabilities have rights to protection from violence, torture, discrimination, and/or seizure of property rights. article 28i(2) of the 1945 constitution asserts that every person shall be free from any discrimination unconditionally and has the right to protection against any discriminative act. there are about 3000 pwd in tulungagung.46 as our interview with didik, most of them live in poor economic conditions due to restricted access to job opportunities and skill training for pwd. several organizations have made empowerment by providing entrepreneurship training for pwd.47 while article 56 of pwd law 8/2016 stipulates the local government responsibility to provide capital to help pwd in businesses, it does not fully recover the pwd economic condition. 45 istifarroh istifarroh & widhi cahyo nugroho, “perlindungan hak disabilitas mendapatakan pekerjaan di perusahaan swasta dan perusahaan milik negara” (2019) 12:1 mimbar keadilan 21 at 23. 46 kabupaten tulungagung, supra note 24. 47 prayitno, supra note 26. 44 | rights to access of public facilities in health services for people with disabilities c. human resources due to covid-19, the government focuses more on the budget spent on tackling the pandemic, not to mention the government of tulungagung. some plans set on the table have to be put off. this change of plan may have held back the drafting of the by-law on pwd in the regency of tulungagung, including the improvement of public facilities for friendlier acceptance of pwd in the regency. the unavailability of proper human resources contributes to sluggish progress in health services given to pwd in the regency. article 62 (2) of pwd law no 8/2016 implies that health workers should give health services to people with disabilities with competence and authority that appropriately allow them to give services to pwd. furthermore, article 63(1) of law 8/2016 implies that central and local governments must provide competent health workers authorized to give health services to people with disabilities with available first level to advanced facilities. the competence is in line with article 68 of law 8/2016 regarding training for health workers. however, health services hire those with no specific competence to give services to pwd. an interview with the head of health center in the regency of tulungagung revealed that no special training intended to give care to pwd was conducted. vi. conclusion some facilities out of eight main facilities that have to be met for pwd are provided to support health services in the regency of tulungagung. however, not all the facilities are accessible for pwd, such as entrances blocked by lines of people queuing for the covid-19 vaccine and handrail blocked by the chairs in the waiting room. public facilities for people with disabilities in health services have not been optimally fulfilled. second, fulfilling the need of the pwd by providing proper facilities in health services in tulungagung encounters three main problems. they are the absence of the by-law protecting pwd rights, discrimination from society and health workers, and paucity of competent human resources provided to give health services to pwd. the government of tulungagung regency 45 | indonesian journal of law and society should take a specific measure and conduct more intensive discussions with pwd organizations and supervise how to fulfill the rights of pwd. acknowledgments the authors would like to express our gratitude to all respondents and relevant institutions who helped them collect data for this research. they were some local institutions in tulungagung regency, such as the national unity and political agency, the health service agency, the children and women empowerment agency, the public relations of dr. iskak hospital, and the head of community health centers. they also thank percatu for the insightful knowledge related to this research. competing interests the authors declared that they have no conflict of interests. references direktorat jenderal peraturan perundang-undangan, panduan praktis memahami perancangan peraturan daerah (jakarta: direktorat jenderal peraturan perundang-undangan, 2009). jasin, johan, penegakan hukum dan hak asasi manusia di era otonomi daerah, cetakan pertama ed (sardonoharjo, ngaglik, sleman, yogyakarta: deepublish, 2019). kabupaten tulungagung, badan pusat statistik, kabupaten tulungagung dalam angka 2021 (tulungagung: bps kabupaten tulungagung, 2021). pratiwi, ari, disabilitas dan pendidikan inklusif di perguruan tinggi (malang: ub press, 2018). rahma diana, nuzul, aksesibilitas bagi penyandang disabilitas pada bangunan umum berdasarkan peraturam daerah jawa timur nomor 3 tahun 2013 dan fikih syasah (studi kasus bangunan umum di kecamatan tulungagung) iain tulungagung, 2020. 46 | rights to access of public facilities in health services for people with disabilities soekanto, soerjono, pengantar penelitian hukum (jakarta: penerbit universitas indonesia (ui-press), 2006). sunggono, bambang, metodologi penelitian hukum (jakarta: rajawali pers, 2016). cheausuwantavee, tavee & chomanad cheausuwantavee, "rights, equality, educational provisions and facilities for students with disabilities in thailand: legal and practical perspectives over the past decade" (2012) 23:1 disability cbr & inclusive development 70. ilyas, husin, “pembinaan dan pengawasan pemerintah pusat dalam rangka penyelenggaraan pemerintah daerah berdasarkan undangundang pemerintah daerah” (2012) 04:04 jurnal bina praja 273– 280. islam, m rezaul, "rights of the people with disabilities and social exclusion in malaysia" (2015) 5:2 international journal of social science and humanity. istifarroh, istifarroh & widhi cahyo nugroho, “perlindungan hak disabilitas mendapatakan pekerjaan di perusahaan swasta dan perusahaan milik negara” (2019) 12:1 mimbar keadilan 21. jumadi, jumadi, “kedudukan dan fungsi peraturan daerah (perda) kabupaten/kota sebagai instrumen otonomi daerah dalam sistem perundang-undangan di indonesia” (2018) 1:1 jurnal hukum unsulbar 27–40. kazou, katerina, "analysing the definition of disability in the un convention on the rights of persons with disabilities: is it really based on a 'social model' approach?" (2017) 2017:23 international journal of mental health and capacity law 25. muhaimin, muhaimin, metode penelitian hukum (mataram: mataram university press, 2020). muttaqin, adhar, “mengintip layanan rsud terbaik di dunia rsud dr iskak tulungagung”, detikhealth (2021), online: <https://health. detik.com/berita-detikhealth/d-4783805/mengintip-layanan-rsudterbaik-di-dunia-rsud-dr-iskak-tulungagung>. 47 | indonesian journal of law and society ndaumanu, frichy, “hak penyandang disabilitas: antara tanggung jawab dan pelaksanaan oleh pemerintah daerah” (2020) 11:1 jurnal ham 131. pawestri, aprilina, “hak penyandang disabilitas dalam perspektif ham internasional dan ham nasional” (2017) 15:1 era hukum. salam, abd, “kedudukan fungsi peraturan daerah (perda) sebagai bagian dari hukum nasional” (2019) 4:5 plenojure 1–12. simandjuntak, reynold, “sistem desentralisasi dalam negara kesatuan republik indonesia perspektif yuridis konstitusional” (2016) 7:1 jurnal de jure 57. suharyo, suharyo, “pembentukan peraturan daerah, dan penerapan sanksi pidana serta problematikanya” (2015) 4:3 rechtsvinding 431. widjaja, alia harumdani, winda wijayanti & rizkisyabana yulistyaputri, “perlindungan hak penyandang disabilitas dalam memperoleh pekerjaan dan penghidupan yang layak bagi kemanusiaan” (2020) 17:1 jurnal konstitusi 197. yuni lestari, eta, slamet sumarto & noorochmat isdaryanto, “pemenuhan hak bagi penyandang disabilitas di kabupaten semarang melalui implementasi convention on the rights of persons with disabillities (cprd) dalam bidang pendidikan” (2017) 28:1 integralistik. kabupaten tulungagung, badan pusat statistik, jumlah penduduk (jiwa) 2018-2020, by badan pusat statistik kabupaten tulungagung (tulungagung: badan pusat statistik kabupaten tulungagung, 2021). kabupaten tulungagung, dinas kesehatan, rumah sakit kabupaten tulungagung (tulungagung: dinas kesehatan kabupaten tulungagung, 2021). kabupaten tulungagung, dinas sosial, data penyandang disabilitas di kabupaten tulungagung (tulungagung: dinas sosial kabupaten tulungagung, 2020). 48 | rights to access of public facilities in health services for people with disabilities prayitno, didik, penyandang disabilitas dan percatu tulungagung (2021). microsoft word 18091-ed.docx indonesian journal of law and society (2020) 1:2 101-124 issn 2722-4074 | doi: 10.19184/ijls.v1i2.18091 published by the university of jember, indonesia available online 30 september 2020 * corresponding authors’ e-mail: nadiyanurmaya25@gmail.com fair use doctrine in photocopying books for educational purposes: a study of copyright acts in indonesia and the united states nadiya nurmaya* university of jember, indonesia mardi handono university of jember, indonesia galuh puspaningrum university of jember, indonesia abstract. globalization has offered a multitude of opportunities and challenges, mainly when it deals with copyright. the scope of copyright has been broad, encompassing various aspects of life, especially in literature and education. this study aims to analyze indonesia's copyright issues, particularly regarding the reproduction of books deemed to have lesser protection for authors, dealing with the fair use doctrine. this doctrine considers that work is allowed to a limited extent for use by other parties without the creator or copyright holder's permission to keep it fair. this fair use doctrine permits limited and fair use of literary works for specific purposes without royalty payments and the author's consent. given the author's more protection, this study then displays a comparative analysis of the u.s. framework on the copyright act portrayed into two main discussions. first, this study will discuss photocopying for educational purposes from the lens of indonesia's copyright act. second, this study considers the possible adjustment to adopt the so-called future concept of restrictions for educational purposes from the u.s. states copyright act 1976. keywords: fair use doctrine, copyright act, copyright for educational purposes. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions submitted: 11/06/2020 reviewed: 12/06/2020 revised: 15/07/2020 accepted: 20/07/2020 102 | fair use doctrine in photocopying books for educational purposes i. introduction copyright’s dramatic legal development started from establishing the berne convention for protection of literary and artistic works as the first convention in this field. the minimum obligations of convention member countries to protect literary and artistic works creators are emphasized in the berne convention’s main provisions. the berne convention then became a reference to the agreement on trade-related aspects of intellectual property rights (trips agreement) and world intellectual property organization copyright treaty 1996 (wipo copyright treaty). one of its kinds is the book as protected by international agreement and national legislation such as indonesia’s copyright act 2014 and the u.s. copyright act 1976. the consequence of this arrangement that includes the book as part of copyright aims to protect the author from potential infringements from other authors, like reproducing the text without permission from the book's author. it asserts that other parties may only reproduce with the consent of the author. however, to thrive in encouraging science and creativity and balance the interests of authors and public interests in education and research, the berne convention sets the procedure of limitation or reproduction as outlined in article 9. also, the berne convention refers to article 13 trips agreement regarding exception, which displays a threestep test. the trips agreement as a continuation of the berne convention briefly stipulates that member countries must comply with the provisions from articles 1 to 21 the berne convention. these mandatory provisions are subsequently contained in article 9 (1) trips agreement. an exception also accompanies this article to the right and obligation referencing to implement article 6. the berne convention and the trips agreement provide leniency to formulate their laws and regulations while still referring to the berne convention and the trips agreement because of these rules' binding nature. indonesia then ratified the berne convention and the trips agreement. as a country with a civil law tradition, the exception to copyright in 103 | indonesian journal of law and society indonesia is copyright limitation. this term is a concept in the civil law system that starts point for copyright protection given to a copyrighted work or object. restrictions in the copyright act aim to regulate industrialization and commercial trade practices as well as fair competition. one of the limitations of copyright is for educational purposes. since the early development of the copyright act, the importance of educational purposes restrictions has been recognized. currently, restrictions are closely related to intergenerational equality for future generations' benefit as two sides of the coin, so-called today's users are authors or writers’ tomorrow. this limitation is often questioned, especially by authors, against photocopying books for educational purposes excepted in article 44 (1) of the indonesia copyright act. this provision is more directed towards qualitative limitations. this is because the interest of education as one of the exceptions to copyright in the article does not explain the definitions, criteria, and limitations allowed to use a work for educational interests. these provisions do not explain the meaning or criteria of educational interests, either for educational purposes of a commercial or non-commercial nature or educational purposes for private or public use. with a note, even though it is for personal and non-commercial purposes, it still cannot harm the creator or copyright holder. the absence of a limit on the number of works allowed or reproduced in books creates confusion in the community. for example, it is the case of a student photocopying book's entire contents, including the most substantial part of the book. however, they still include the author's name to be used as learning for educational purposes. it has become prevalent because there is no explicit limit on how much reproduction can be done not to harm the author. unfortunately, regarding this attitude, there remains no affirmation that it goes beyond the meaning of the purpose of education itself. as a result, there are not only one or two who carry out this act of reproduction. many of them still do not understand the meaning of appreciating work. it lasts to assume that reproducing books for educational purposes is a common thing. in contrast, it harms the author’s economic interests. 104 | fair use doctrine in photocopying books for educational purposes given such a prevalent attitude, indonesia copyright act 2014 needs to refer to the u.s. copyright act 1976. in the context, the united states' policy in this field refers to international agreements, despite its common law tradition. as a result, the term given to the exception of copyright is fair use. this doctrine considers that work is allowed to a limited extent for use by other parties without the creator or copyright holder's permission to keep it fair. this fair use doctrine permits limited and fair use of literary works for specific purposes without royalty payments and the author's consent. these objectives are set in section 107 copyright act 1976, which explicitly parameters regarding the limits to determine fair use are apparent. there are four factors in it. first, the purpose and character of the use, including whether the use is commercial or for non-profit educational purposes. second, the nature of work. third, the amount and substance of the portion used. fourth, the economic consequences of use. to determine whether a work is a fair use, these four factors are interrelated and move simultaneously. the regulation regarding book reproduction in the u.s. is quite detailed and strict. this precise and strict regulation shows a higher awareness of the importance of copyright in the u.s. society responded by the government to provide a legal basis for protection. thus, indonesia’s current challenges and opportunities can refer to the existing u.s. copyright act even though both countries have different legal systems and traditions. to be sure, it is not an excuse for creating a dichotomy between the two. according to jan michiel otto, the different legal systems between common and civil laws have increasingly become smaller. therefore, apart from differences in the legal system, the legal vacuum against copyright restrictions in indonesia, as written in article 44 of the copyright act, needs to address, and the comparative study has been inevitable. there are several previous studies discussed the doctrine of fair use. firstly, photocopying copyrighted works for educational purposes is written by dharam veer singh and pankaj kumar at the national law institute university, bhopal.1 the paper analyzes whether photocopying of 1 dharam veer singh & pankaj kumar, “photocopying of copyrighted works for educational purposes: does it constitute fair use?” (2005) jipr vol 101 january 2005, online: <http://nopr.niscair.res.in/handle/123456789/3611. 105 | indonesian journal of law and society copyrighted works for an educational purpose constitutes fair use.2 the statutory provisions on the issue in different countries have been enlisted.3 the u.s. law has been exhaustively dealt with, followed by the guidelines as prescribed by the government body under the u.s. congressional mandate.4 a case analysis has been done to ascertain the courts' approach in applying the statutory provisions to the instances of making multiple copies of copyrighted works for educational purposes. fair use under the u.s. statute depends on the four factors of purpose, nature, amount, and effect. the guidelines, however, make fair use dependent on brevity, spontaneity, and cumulative effect.5 in the last part of the paper, the prevailing u.s. law is compared with indian law.6 secondly, the paper analyses the indonesian copyright act 2002, later amended to law number 28/2014 that remains a lack of strict regulation of copyright policy in indonesia. the occurrence of emptiness law concerning the principle of fair use of some books' policymaking copies in library college. the purpose of this research is to analyze the form of regulation law on the principle of fair use in copyright associated with the policy of making copies of books in a library under the provisions of indonesian copyright and the australian copyright acts. third, the implication of the fair use doctrine in indonesia. this article discusses fair use (article 43-49 act 28/2014) of lecturers and researchers' scientific work. this legal discourse in the field of copyright law will be performed through doctrinal research. the critical finding states that the fair use doctrine allows scholars to utilize copyright-protected work from others under scientific or educational purposes – without obtaining prior consent or license. nonetheless, the user of copyright-protected works must pay attention to the reasonable interest of the copyright holder, the meaning of which is left to legal practice. fourth, the fair use doctrine in its history, application, and implications examines the fair use doctrine's understanding 2 ibid. 3 ibid. 4 ibid. 5 ibid. 6 ibid. 106 | fair use doctrine in photocopying books for educational purposes to become second nature. to this end, the author summarizes the salient points of law and fair use practice and demonstrates. in short, this paper examines whether the fair use doctrine can inform the teaching of writing in digital contexts. as teachers, researchers, and experts of writing, the discourse of fair use must be considered in addition to the discourse of plagiarism. this study aims to analyze indonesia's copyright issues, particularly regarding the reproduction of books deemed to have lesser protection for authors. given the author's more protection, this study displays a comparative analysis of the u.s. framework on the copyright act portrayed into two main discussions. first, this study will discuss photocopying for educational purposes from the lens of indonesia’s copyright act. second, this study considers the possible adjustment to adopt the so-called future concept of restrictions for educational purposes from the u.s. copyright act 1976. ii. fair use doctrine in the restriction of book photocopy for education: an analysis a. indonesia's copyright act 2014 international agreements such as the berne convention, the trips agreement, and the wipo copyright treaty do not explicitly explain the definition of creation and describes the types of creative works on creation only. this creative work is a type of work that is protected by copyright. initially, copyright was concerned only with preventing the legal, physical use of printed material, but it has changed with technological development. this affects the development of types of creative works protected by copyright. article 2 the berne convention describes the types of works that are protected. however, the types of works mentioned are the minimum types of works that must be protected by copyright provisions in a country. however, the berne convention states that the extent to which each 107 | indonesian journal of law and society country's laws and regulations are applied to copyright provisions in the matter of the state itself.7 it asserts that each country has its authority in determining the implementation of these copyright arrangements. this is because both by adoption and using transplantation, a government can adopt an international scale regulation. one type of creation mentioned in article 2 berne convention is a book. the trips agreement explains that member countries must comply with the provisions contained in article 1 to 21 of the berne convention, as stated in article 9 (1) trips agreement. an exception also accompanies this article to the obligation to implement article 6 and the rights derived from that article. in the trips agreement as a continuation of the berne convention, the arrangements regarding the types of works protected by copyright have no difference with those stipulated in the berne convention. however, only the types of covered works are further expanded, as contained in article 10 trips agreement includes computer programs, compilation of data, both digital and other forms. there was a previous exception in article 9 (2) trips agreement that the copyright protection is explicitly extended regarding expressions (fixation), not ideas, procedures, operating methods, or mathematical concepts. article 1 the indonesian copyright act 2014 explains that creation is any copyrighted work in science, art and literature produced based on inspiration, ability, thought, imagination, talent, skill, or expertise expressed in tangible form. copyright protection applies automatically when a work copyrightable is made. the copyright act requires fixation, a fundamental concept of copyright, which only protects the manifestation of work, so it does not have to do with the substance.8 the standards for protecting a new work based on this principle are relatively easy to meet regarding originality. even new works involving only the most superficial variations of existing work can find protection. however, the creation must still be original, not plagiarism over other creations. 7 desy nurhayati, tinjauan hukum hak cipta terhadap aspek penggunaan komersial terhadap ciptaan yang menggunakan lisensi creative commons (depok: skripsi fakultas hukum universitas indonesia, 2011) at 51. 8 eddy damian, hukum hak cipta (bandung: alumni, 2009) at 98. 108 | fair use doctrine in photocopying books for educational purposes referring to this copyright act, a copyrighted work must have a distinctive form, be personal, and show originality as a creation that was born based on ability, creativity, or expertise so that the work can be seen, read, or heard.9 this means that copyright does not only protect ideas. works protected by the copyright act are in three areas, namely art, literature and science.10 the three are detailed again in article 40 of the copyright act, where one of the protected works is a book. it can be seen that a book is one of the creations that have a unique space in copyright protection, both in the berne convention, the trips agreement, the wipo copyright treaty, and the copyright act. thus, a book is an object of the copyright that has been recognized by all copyright regulations worldwide. this is because books are the intellectual property of a creator, which, apart from having an economic meaning for those who exploit them, also has an essential purpose for a nation's spiritual and material development.11 books are literary expressions; what is essential to consider that the book as creation is that what is protected by copyright is the right, not the object. this means that what is protected by copyright is the right to reproduce books.12 apart from adhering to the principle of fixation, books protected by copyright must also fulfill the declaration of originality (not an imitation of other people's work). work as a whole is not an imitation of another author's written work. however, it must come from his work even though in creation in the form of a book, some parts may imitate or be inspired by other authors' writings. that is not including copyright infringement because it is not a copy in its entirety, but in part a sentence by inserting a comment according to the author's thought. books receive copyright protection as described in article 40 of the copyright act, which avoids acts of copyright infringement by other parties 9 general explanation act no. 28/2014 on copyright. 10 budi agus riswandi dan m. syamsudin, hak kekayaan intelektual dan budaya hukum (jakarta: raja grafindo persada, 2004) at 10. 11 imam sya'roni dziya' urrokhman, perlindungan hukum karya cipta buku ditinjau dari undang-undang nomor 19 tahun 2002 (semarang: tesis magister universitas diponegoro) at 8. 12 ok saidin, aspek hukum hak kekayaan intelektual (jakarta: raja grafindo persada, 1995) at 55. 109 | indonesian journal of law and society such as photocopying without permission from the author. reproduction can be defined as multiplication, namely making something the same or similar, whether using the same material or not, by changing the reproduced creation or not changing the medium and type of creation. the right to reproduce a work in the form of a book or written work is part of the creator's rights.13 photocopying work, such as a book or other written work, is a form of copyright infringement if done without the author's permission. it may be subject to punishment as set in article 113. however, the berne convention then regulates copyright restrictions to recognize the need to promote science and creativity and balance creators and public interests, especially in education and research. the berne convention, as the first convention resulted in an international agreement in the copyright, regulates the restrictions contained in article 9 berne convention. the restrictions are set in articles 10 and 13 of the berne convention that outline member countries through their national laws and regulations can determine the limits of these works' protection. in practice, these restrictions are related to de minimis doctrine or de minor reservations.14 it asserts that the minimal use of the work or the minimum requirements does not violate the author's exclusive rights based on this doctrine. this provision contains the right of reproduction, which can be categorized as an article regulating book reproduction. the core of the coverage included in article 9 of the berne convention is known as exploitation types. copy of work, books, and other written assignments must not conflict with the author's normal exploitation. this article explains the complete protection of the creator or copyright holder to permit other parties who need the right to reproduce their works. an author is also given the right to prohibit other parties from reproducing a work, including written works or books. this propagation can be done in various forms or methods. for example, the reproduction of books using a photocopier or digitally. 13 article 9 (1) act no. 28/2014 on copyright. 14 rahmi jened, hukum hak cipta (copyright law) (bandung: citra aditya bakti, 2014) at 162. 110 | fair use doctrine in photocopying books for educational purposes berne convention is the subject of referral arrangements in article 13 of the trips agreement. it deals with limitations and exceptions that set the three-step test to examine whether such restrictions are not abused. the main objective is to provide a balance between entitlements exclusive and limitation of exclusive rights.15 this three-step test justifies in line with the teleological argument because this test lies as a boundary between the author's exclusive rights and the privileges to use.16 the test includes three incremental steps, namely, basic rules: limitation must be certain exceptional cases, the first condition delimiting the basic rule: no conflict with a standard exploitation-compulsory license impossible, and the second condition delimiting the basic rule: no unreasonable prejudice to legitimate interestscompulsory possible permits.17 the first step states that restrictions are allowed for some instances, one of which is related to photocopying cases for educational purposes. the second step is that certain exceptional circumstances stated in the first step must not conflict with the fair use of a work. the third step is if using someone else's work without permission but not for commercial purposes does not reduce legitimate interest authors' prejudice. as a legal consequence of the berne convention and the trips agreement's ratification, indonesia is obliged to comply with the convention's rules. it is allowed to compile its national laws and regulations regarding copyright. this is because each convention member country has a different culture from one another. in addressing the protection of intellectual property rights, it is not the same. the copyright act does not provide explicit regulations on the procedure for reproducing a work in the form of books or other written works. this does not mean that other parties who wish to reproduce books cannot take a reference. article 1 of the copyright act states that copyright is an exclusive right for a creator that automatically arises based on the declarative principle after work is manifested in a tangible form without reducing restrictions on the provisions of laws and regulations. the exclusive right in question is a 15 ibid at 157. 16 ibid. 17 ibid. 111 | indonesian journal of law and society right reserved only for the creator. no other party can take advantage of the right without the author's permission; copyright that is not an author has a part of the exclusive right in the form of economic rights.18 however, due to the consequences of the ratification of international treaties, as previously explained, indonesia also regulates copyright exceptions because the implementation of exclusive rights not only considers the protection of the creator but also takes into account the development of science and creativity. thus, restrictions aim to balance the interests of creators or copyright holders with public interests. indonesia is a country that adheres to civil law. the civil law is not purely derived from indonesian society. the legal system that is considered native to the indonesian people is customary law and religious law. however, when dutch colonized dutch indies, later so-called indonesia, embedding civil law for three centuries in the administration, this system finally influenced and participated in this archipelagic government. after indonesia started decolonization, it remains to apply most of the dutch's general rules despite the recognition of adat laws and islamic legal tradition. over time, in its implementation, indonesia is no longer fully implementing civil law. civil law is a tradition inherited from roman law dating back to 450 bc. this tradition develops the concept of right, ethics, and state, which is essentially the existence of personality, influenced by gw friedrich hegel.19 civil law's legal tradition is called natural rights justification, which views copyright as the creators' fundamental rights20 the author's right system as a system is a reward reflected in this legal tradition. the term limitation is a conception of civil law.21 this is because the starting point of copyright protection is given to the creator as the copyright subject with personal intellectual creation. the creator's exclusive right means that no other person may exercise the right, except with the creator's permission. the sect adhered to by the state civil law adheres to the philosophy that copyright is considered a natural right owned by the creator. 18 explanation of article 4 act no. 28/2014 on copyright. 19 rahmi jened, supra note 14. 20 ibid. 21 ibid. 112 | fair use doctrine in photocopying books for educational purposes the limitations in the copyright act are regulated in article 43 to article 51. article 44 (1) of the copyright act aims that the exclusive rights owned by the creators prevent exploitation of copyright by others for commercial purposes. this limitation is also designed to regulate industrialization and commercial trade practices, and the existence of fair competition.22 so, there is no violation if other parties use a work for fair play. regarding adopting, rules contained in international treaties, not merely all rules are adopted into national legislation. it indicates that each country has its interests in its laws and regulations, particularly in protecting its intellectual property. it is impossible for indonesia, as it ratified various international treaties on intellectual property rights, has contradictions in applying the adoption results into national legislation. it looks like it is about copyright restrictions for educational purposes. according to the copyright act, this act is not considered a copyright infringement, as provided that the source is included and does not harm the creator.23 since the early development of copyright law, the importance of limiting it for educational purposes has been recognized. the limitation is currently closely related to intergenerational equity for generations' benefit to come as the two sides of coins are among today's users24 this means that users of work intend this limitation to appreciate a work more so that later writers feel that their work is appreciated and gives birth to new writers. when a country enjoys a creation, this will also impact the country's economy. in the form of a book, what has been created by the author later, the honorarium will be given to the author or author and given to the state as taxes. the rules regarding copyright restrictions for educational purposes are contained in article 44 (1) letter a, which is a qualitative article. before the current copyright act was applied, the rules regarding copyright restrictions were still quantitative. the benchmark for how much other parties can use work is evident, namely as much as 10 percent of each work's unanimity on the condition that the source must be fully identified.25 the difficulty in 22 ibid at 24. 23 article 44 (1) act no. 28/2014 on copyright. 24 rahmi jened, supra note 14 at 164. 25 article 15 act no. 6/1982 on copyright. 113 | indonesian journal of law and society determining a percentage of a work of art results in objections regarding the old provisions. the question of what if someone uses or reproduces someone else's written work because educational interests are less than 10 percent. still, it is a substantial part.26 thus, this reason is what makes the change from a quantitative article to a qualitative one. the criterion for books can be photocopied for educational purposes in a textbook. the act of photocopying books for the sake of education when viewed from the perspective of the current copyright act by referring to article 44 (1) letter a, then this action can be said to be a copyright violation and can also be said not to violate rights create. this is because the article only states, "... copyright infringement is not considered if the source is fully stated for educational purposes without prejudice to the reasonable interests of the creator." this means that this article is still qualitative because it does not explain how much other parties can say that it is not detrimental to the creator. also, the definition and characteristics of educational interests themselves are not explained in detail in the copyright act to be fair use. whether it is for educational purposes of a commercial or non-commercial nature, academic interests for private or public use, with a note, even though it is for educational purposes used for personal and non-commercial purposes, still must pay attention the reasonable interests of the creator. when other parties as users make copies of a book or other written work, as often encountered in educational institutions (schools and universities), students reproduce texts as a whole, from cover to section, and keep the author's name used teaching material personal use. unfortunately, regarding this action, there is still no affirmation that it goes beyond the meaning of the purpose of education itself. as a result, there are not only one or two who carry out this act of reproduction; many still do not understand the meaning of appreciating creation and consider the act of reproducing books for educational purposes. every thought of the community, especially students and academics, will impact the creator's economic interests. therefore, the reproduction of work for education must still consider the creator's financial interests. do not let the economic benefits that should be felt by the creators 26 rahmi jened, supra note 14 at 165. 114 | fair use doctrine in photocopying books for educational purposes completely disappear with the existence of regulations regarding copyright restrictions. b. the united states’ copyright act 1976 provisions regarding copyright exceptions are to encourage the development of science and creativity and balance creators' interests and the public's interests. this provision is then adopted into copyright law in indonesia. however, there is a contradiction about these provisions stated in the copyright act regarding copyright limitation for educational purposes. the article does not explain how many other parties can use or reproduce a work that is not considered detrimental to the creator. therefore, indonesia also needs to refer to book reproduction guidelines adopted by common law countries such as the u.s., which already have regulations on copyright. law enforcement in the u.s. is more advanced than in indonesia. the united states follows the common law tradition influenced by john locke, an english philosopher. his claim deals with the concept of property related to human rights with the statement of life, freedom, and ownership.27 locke believed that man should be rewarded for his labor, regardless of form.28 the tradition is a common law system called "functionalist justification," as an incentive system that defines copyright protection as an economic instrument to increase knowledge and support socio-economic development.29 as a copyright system, the object of copyright or creation (copyrighted work) is the starting point of protection. access to fair use of a work is granted to the public.30 this has led to the common law giving the term fair use or fair dealing. about protected works, apply restricted rights that the community is not allowed, except for fair use. if copyright is a legal metaphysics, fair use is semiotic. the term fair use is known in the u.s. copyright act 1976 as a norm that limits authors' exclusive rights. compared to all existing provisions in copyright, the doctrine of fair use is often difficult to understand. this doctrine stipulates 27 ibid. 28 ibid. 29 ibid. 30 ibid. 115 | indonesian journal of law and society that work is allowed on a limited basis for use by another party without the creator or copyright holder's permission to retain the nature of a fair.31 even so, the u.s. copyright act 1976, which applies in the united states, does not clearly define fair use. this regulation only states that the doctrine of fair use is a defense against claims for copyright infringement.32 the u.s. copyright act 1976 states that criticism, commentary on news reports, teaching (including reproduction of copies for classroom use), science, or research are types of purposes that can justify examining fair use.33 the rules that have been mentioned above also provide general guidelines for determining fair use whether or not. these guidelines are set out in section 107 of the copyright act 1976 (limitations on exclusive rights: fair use). the fair use doctrine involves balancing between a set of variables that determines whether other interests can overrule the creator's rights. section 107 of the 1976 copyright act explicitly identifies four factors to determine fair use, including the purpose and character of the use, the nature of the work, the proportion or share took, and economic consequences. other literature also adds two guidelines apart from the four factors above, namely the intent and reasons of other parties in using the work. the connection with this is if the other party does not have a reason for profit; for example, his action is carried out solely for the benefit of education, personal interest. it cannot qualify as a commercial profit-seeking interest.34 the doctrine considers several different interests so that it is a complex issue in copyright law institutions.35 therefore, the other party cannot necessarily argue that their act of reproducing a work has been excluded by fair use. as the party with authority to determine fair use interest or not, the court has a vital role in answering this matter. in this section, four factors are described in section 107 of the copyright 31 eddy damian, supra note 8 at 120-121. 32 arthur r. miller and michael h. davis, intellectual property: patents, trademark, and copyright, in a nutshell, (minnesota: west publishing, 1990) at 348. 33 section 107 u.s. copyright act 1976. 34 c. anwar, hak cipta, pelanggaran hak cipta, dan perundang-undangan baru hak cipta di indonesia (jakarta: novindo pustaka mandiri, 1999) at 29. 35 ibid. 116 | fair use doctrine in photocopying books for educational purposes act 1976 to determine whether the use of a work is fair use or not. the first is the purpose and character, including its commercial nature. this purpose and character is a dualistic concept of commercial use versus non-commercial use and public use versus private use. the dynamism of fair use involves interrelated factors rather than determining factors. however, no doctrine mandates solely that non-commercial purposes and personal use are automatically fair use. however, the non-commercial nature of the use and its character are very persuasive in determining fair use or not in this use.36 the u.s. copyright act 1976 does not separate the terms non-profit and education; it is not clear that fair use for educational purposes should always be non-profit or not.37 simultaneously, it is not surprising that when elements of educational objectives and non-profit institutions meet in the same defense, the result is not necessarily fair use. this could be due to the creation's nature, namely the text whose market is expected in an educational environment. the substantiality of its reproduction far exceeds the other party's non-profit educational goals.38 in conclusion, perhaps one accurate way of highlighting this purpose and character is by testing a profit motive that almost certainly rejects fair use. whereas what is said to be in the interests of education, criticism, or others, the court views it as chiseling for personal profit.39 courts are even more supportive of uses that are transformative than those that are reproductive (resembling the original or only in photocopy). this means that when a copyrighted work is changed into something new or a new utility, it is possible to say it is fair use. second, namely the nature of creation, the creation's nature can be measured through the creativity and originality invested by the creator. a work that describes two characteristics (creativity and originality) that deserve consideration has a smaller chance of fair use than with a mass-produced with minimal creativity and originality levels. this statement's purpose is that creation with high creativity and originality is used by someone who is not entitled to make it difficult for that party to fight the lawsuit on the 36 arthur r. miller and michael h. davis, supra note 32 at 352. 37 ibid. 38 ibid at 353-354. 39 ibid at 353. 117 | indonesian journal of law and society grounds of fair use. nevertheless, it is different if creation has minimal creativity and originality and is also created by many people. this is undoubtedly easier for someone who uses the work to defend other parties' claims on the grounds of fair use. the nature of creation can be measured through the creativity and originality invested by the creator.40 suppose the nature of work is inevitable, and another party's use lies in the same area as the work's potential benefits. in that case, this does not support fair use.41 for example, work is the creation of education. the market intended for using the work by other parties is also in education. thus, this is not legitimate to be called fair use. fair use can also be used for both published and unpublished works.42 it is challenging to prove fair use in the use of works that have not been published, such as documents or personal letters unless unethical or illegal practices appear in work. this is due to the inherent right to first publication on works that have not been published. the nature of works that have not been issued is very likely to incriminate fair use defense.43 third, testing the proportion or partly taken. david naver explained that the most important thing that needs to be asked and answered from this test is whether other parties take part or reproduce a creation more than is necessary for its purpose.44 the general principle commonly heard from this third factor is the more taking, the more infringement. the meaning of the word more indicates that the word is qualitative and quantitative. this means that part three of section 107 copyright act 1976 stipulates that an assessment qualitatively and quantitatively is necessary. quantitative assessment is carried out by paying attention to the number or proportion taken. in contrast, a qualitative assessment is carried out by paying attention to the part substantially taken. for example, a student takes the entire contents of a book chapter to be reproduced, quantitatively it is 40 ibid at 356. 41 ibid at 355. 42 ibid at 351. 43 desy nurhayati, supra note 1 at 71. 44 david naver, intellectual property law: copyright, patent, trademark (ontario: irwin law, 1997) at 105. 118 | fair use doctrine in photocopying books for educational purposes considered a lot, but its nature is not too substantial, it may not be a copyright violation. it is different from taking a small part in a book's contents, even though it is tiny quantitatively. still, it is very substantial, or the basis is the essence of the work. qualitatively, the taker's action may be considered unfair or violating copyright. in essence, the framework that can be inferred is how much and how substantial the portion is taken. therefore, before determining whether the use of another party is fair, it must first be determined whether its use is in violation or not. qualitative reproduction of creations should not exceed the educational goals to be achieved. a quantitative examination is also carried out by taking into account the number of parts taken from the original work, not the whole. to determine the benchmarks for the proportion of features that can be used, the academic community and book publishers have agreed to apply classroom guidelines for book reproduction even though they are not listed in the law.45 in the end, it was agreed that other parties could only reproduce books at a maximum of 10% or a thousand words from the entire book page. especially for book creation, reproduction for the benefit of classroom lessons and research can only be done once for the teacher. many copies are allowed for one student per class if one chapter of the book is short enough, copied spontaneously, and according to the test. cumulative effect.46 not only that, several other written works such as poetry, picture books (comics, children's books), sheet music also have their respective provisions, what percentage can be reproduced. the fourth is the economic effect of taking. testing the economic consequences of this take assesses how other parties' use of the work (users) affects a work's potential market. this economic effect can also be determined by how much or how important the work is. the use of multiple shares can affect the market effect of the creator's property and or the use of 45 united states copyright office, "reproduction of copyrighted works by educators and librarians," online: <http://www.copyright.gov/circs/circ21.pdf>. 46 dharam veer singh and pankaj kumar, photocopying of copyrighted works for educational purpose: does it constitute fair use? (2005) 10:1 journal of intellectual property rights, at 23. 119 | indonesian journal of law and society small parts. still, a substantial amount or core of the work can also affect the creator's property's potential market effects because the harvest is very economical. 47in some circumstances, a small part of the quote may not damage the work's potential in question. this is because a section may not be a substitute for using a work; for example, a writer quotes a sentence from another author's book, puts it in his published book, and then trades it on campus for educational purposes.48 the author who quotes it may not have violated fair use because it does not necessarily make the other party (readers) think not to buy the book from the author whose sentence has been quoted. this factor is a critical factor in fair use because it connects and makes other elements defense of fair use simultaneously. however, this last factor is not merely a determinant of a work being said to be fair or not. other factors are also essential to consider and determine. it is only used to estimate whether there is a loss to the creator for using other parties' work. however, choosing how much to lose from this creator's potential market is very difficult to quantify. rarely found exact numbers. thus, in giving judgments, the court must be observant because of this factor's difficulty to prove. determining whether a use is fair use or not can only be concluded with only one factor; for example, using work for educational purposes has been declared as fair use. however, it is still necessary to evaluate, apply, and weigh in the balance the nature of the work, the substance of the parts used, and the economic consequences of market use or the value of the work. in essence, it needs to be underlined that even though there is a provision for reproduction for educational purposes in the u.s. copyright act 1976, it still has to meet the four factors in section 107 of the u.s. copyright act 1976. after answering the four elements, the impression is born whether the act of reproduction is considered, whether fair or not. according to john henry merryman, to copy the u.s. copyright model, convergence is considered more appropriate. the civil law and common law are increasingly similar rather than significantly different. therefore, 47 arthur r. miller and michael h. davis, supra note 26 at 360-361. 48 usg copyright policy, "the fair use exception," 0nline: <http://www.usg.edu/ copyright/the_fair_use_exception>. 120 | fair use doctrine in photocopying books for educational purposes apart from differences in legal systems, there should be legal obscurity to copyright exceptions in indonesia for educational purposes as stipulated in article 44 (1) of the copyright act can find solutions by using the comparative law method or using legal transplants to obtain objective results.49 cases regarding copyright restrictions in photocopying work such as books or other written works have never existed in indonesian judicial practice.50 whereas we often encounter, especially in school environments and campus, users' actions to multiply books even as a whole are used for educational purposes. this is because many people take copyright protection lightly and think that making copies of books for the sake of academic reasons is a lawful act. therefore, it is necessary to reinforce copyright protection. it is expected that the entire community will be able to realize it to better respect copyright. a more specific way to provide copyright protection to works is by revising the provisions regarding copyright exceptions as contained in article 44 (1) letter a of the copyright act. they are not only qualitative but also quantitative. of course, this is regarding the article's determination, namely how many proportions can be used or made reproduction of a work. for that, we need a mutual agreement by both authors, academics, and a photocopy shop in determining the number of parts to be used or reproduced on a creation that will serve as guidelines. it is also necessary to have an exact meaning regarding what kind of educational interest is meant in article 44 (1) letter a, whether it is non-commercial academic interests or not, for private use or public use. other parties (users) who will use a work or work belonging to the creator must be carefully examined. for example, another party, namely a student making a copy of work because it may only use as much as 10% of the book's total contents for educational purposes. also, the reasons for the importance of education do not merely make it an act of fair use. even though education 49 choky r. ramadhan, convergence of civil law and common law in indonesia in the discovery and formation of law, (2018) 30:2 mimbar hukum, at 215. 50 kristian takasdo and agus sardjono, fair use in the copyright protection system: a comparative study between indonesian copyright law and united states copyright law, (depok: thesis faculty of law university of indonesia, 2013) at 2. 121 | indonesian journal of law and society interests are one of the exceptions to copyright, it must still be considered whether the parts of education in terms of whether education is profitable. there need to be strict sanctions, both administrative and criminal sanctions related to this issue, so that creators in indonesia feel that their creations are respected. if things are implemented, new creators can create designs without any fear of actions like this, which will have a good impact on the indonesian economy. iii. conclusion indonesia's copyright law concept needs a considerable adaptation through the legislative revision to include copyright exceptions for more specific educational purposes. by referring to the u.s. copyright act, the regulation regarding book reproduction in the u.s. is quite detailed and strict. this precise and strict regulation shows a higher awareness of the importance of copyright in the u.s. society responded by the government to provide a legal basis for protection. thus, indonesia’s current challenges and opportunities can refer to the existing u.s. copyright act even though both countries have different legal systems and traditions. references anwar, chairul. hak cipta, pelanggaran hak cipta, dan perundangundangan baru hak cipta di indonesia (jakarta: novindo pustaka mandiri, 1999). damian, eddy. hukum hak cipta (bandung: alumni, 2014). dharam veer singh & pankaj kumar, “photocopying of copyrighted works for educational purposes: does it constitute fair use?” (2005) jipr vol 101 january 2005. jened, rahmi. hukum hak cipta (copyright’s law) (bandung: citra aditya bakti, 2014). miller, arthur r. and michael h. davis. intellectual property: patents, trademarks, and copyright, in a nutshell (minnesota: west publishing, 1990) 122 | fair use doctrine in photocopying books for educational purposes naver, david. intellectual property law: copyright, patents, trademarks (ontario: irwin law, 1997). nurhayati, desy. tinjauan hukum hak cipta terhadap aspek penggunaan komersial terhadap ciptaan yang menggunakan lisensi creative commons, skripsi (depok: fakultas hukum universitas indonesia, 2011). ramadhan, choky r. "konvergensi civil law dan common law di indkum,ia dalam penemuan dan pembentukan hukum" (2018) 30:2 mimbar hukum. rife, martine courant. the fair use doctrine: history, application, and implications for (new media) writing teachers, the fair use doctrine: history, application, and implications for (new media) writing teachers, writing program, department of communication, lansing community college, lansing, mi, usa, 2007. riswandi, budi and m. syamsudin. hak kekayaan intelektual dan budaya hukum (jakarta: raja grafindo persada, 2004). saidin, ok. aspek hukum hak kekayaan intelektual (jakarta: raja grafindo persada, 1995). singh, dharam veer and pankaj kumar. photocopying of copyrighted works for educational purpose: does it constitute fair use? (2005) 10:1 journal of intellectual property rights. sudjana, implikasi doktrin “fair use” terhadap pengembangan ilmu pengetahuan oleh dosen atau peneliti dalam perspektif hukum hak cipta (bandung: fakultas hukum universitas padjadjaran, 2018). takasdo, kristian and agus sarrdjono. fair use dalam sistem perlindungan hak cipta: suatu studi perbandingan antara undang – undang hak cipta indonesia dengan copyright law amerika serikat, skripsi, (depok: faukltas hukum universitas indonesia, 2013). u.s. copyright office, “reproduction of copyrighted works by educators and librarians” online: <http://www.copyright.gov/circs/circ21.pdf>. urrokhman, imam sya'roni dziya'. perlindungan hukum karya cipta buku ditinjau dari undang-undang nomor 19 tahun 2002, tesis (semarang: fakultas hukum universitas diponegoro). 123 | indonesian journal of law and society usg copyright policy, "the fair use exception," online: <http://www.usg.edu/copyright/the_fair_use_exception>. widowati, retno sari. penerapan prinsip fair use dalam hak cipta terkait dengan kebijakan perbanyakan buku di perpustakaan perguruan tinggi (studi perbandingan hukum berdasarkan undang undang hak cipta di indonesia nomor 28 tahun 2014 dan australia) (malang: fakultas hukum universitas brawijaya, 2015). 124 | fair use doctrine in photocopying books for educational purposes this page intentionally left blank microsoft word 24146 print.doc indonesian journal of law and society (2021) 2:2 235-258 issn 2722-4074 | doi: 10.19184/ijls.v2i2.24146 published by the university of jember, indonesia available online 30 september 2021 _____________________________ * corresponding authors’ e-mail: alandhavonar88@gmail.com corporate legal liability for corruption in the private sector idrus salam* university of muhammadiyah surabaya, indonesia satria unggul wicaksana prakasa university of muhammadiyah surabaya, indonesia abstract: corruption in the private sector has been an emerging issue in indonesia, regarded to become a serious problem to the rule of law. in this case, the problem is the difficulty in tracking down perpetrators of corruption in the private sector since legal accountability does not pay serious attention. for example, the rolls royce case involved many jurisdictions in indonesia that experienced obstacles due to limited authority and low commitment from the country. this study aimed to examine how private sector corruption is linked to legitimizing bribery by foreigners by answering the following questions: what is the legal liability of corporations as perpetrators of corruption in the private sector? what are the legal mechanisms in indonesia for understanding private sector corruption? in this study, the socio-legal method was used to analyze corruption as a national and international crime to respond to the raised legal issues. the results indicated that the pattern of corruption in the private sector for officials could result in corrupt policies. furthermore, for the private sector, it can lead to unfair business competition. therefore, it must be handled immediately so corruption cases in the private sector cannot continue to occur, causing harm to the public and indirectly affecting the country. keywords: corruption, criminal liability, private sector. copyright © 2021 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 30/04/2021 reviewed: 05/05/2021 revised: 24/09/2021 accepted: 30/09/2021 how to cite: salam, idrus & satria unggul wicaksana prakasa, “corporate legal liability for corruption in the private sector” (2021) 2:2 indonesian journal of law and society 235-258, online: <https://doi.org/10.19184/ijls.v2i2.24146>. 236 | corporate legal liability for corruption in the private sector i. introduction in indonesia, it is commonly agreed that corruption is an extraordinary crime that involves the government, business agents, and certain people who commit crimes. it relates to the public or specific individuals or groups' interests. corruption in the private sector is deemed urgent and must be addressed through law and regulations since the indonesian government's policy of opening investment valves will depend on the extent to which fair business competition practices are conducted. it impacts unfair business competition and has implications for harmful economic growth and investment development. marbun argued that private sector corruption results in inefficiency,1 that undermines market activity by promoting unfair competition and undermining fair competition.2 one of the most recent national and international legal instruments important in preventing and eradicating corruption is the validation of the united nations convention against corruption (uncac) in 2003. the indonesian government took steps to eliminate governance that involves state finances and systematically violates the social and economic rights of the community as a whole. corporations have become criminals due to rampant corruption involving corporations that are the subject or perpetrators of criminal acts of corruption, under law 31/1999 and law 20/2001 on corruption eradication.3 about 90 percent of corruption cases involve many corporations, either as perpetrators of crimes or parties that provide facilities and infrastructures for criminal acts.4 the model is bribery to obtain several national projects or influence policies and unfair business competition.5 the fact is that corruption in the private sector is one of the 1 a.n. marbun, “suap di sektor privat: dapatkah dijerat?” (2017) 3:1 j anti korupsi integritas 53–85. 2 eddy o.s. hiariej, “korupsi di sektor swasta dan tanggung jawab pidana korporasi” (2020) 49:4 masal-masal huk 333–344. 3 muridah isnawati, “arah penegakan hukum tindak pidana korupsi oleh korporasi dalam sistem hukum pidana nasional” (2017) 2 118. 4 bambang widjojanto, “kajian awal melacak korupsi politik di korporasi” (2017) 3:1 j antikorupsi integritas 31–52. 5 ibid. 237 | indonesian journal of law and society most common types of corruption committed in indonesia.6 meanwhile, transparency international also released its 25th corruption perceptions index (cpi) for the 2020 measurement year in indonesia.7 cpi 2020 is based on 13 surveys and global evaluations from leading experts and business people to measure public sector corruption in 180 countries and territories.8 the cpi evaluation is based on scores. a score of 0 means very corrupt, and a score of 100 is very clean.9 therefore, indonesia's cpi is less than 2/3 of the countries surveyed and less than 50 points, and the global average score is 43.10 also, in the asia pacific, the average cpi score is at 45, down one point from last year's asia pacific average of 46 points. meanwhile, indonesia cpi 2020 score 37.11 it demonstrates a decline in most countries' efforts to eradicate corruption, even in a pandemic situation.12 it becomes a concern in the regulation of things that can happen in the private sector. the corruption pattern in the private sector has weakened and reduced legal and investment problems in indonesia. one of the fraud cases was committed by the managing director of pt garuda indonesia from 20052014 emirsyah satar and soetikno soedarjo as beneficial owners of connaught international pte, between 2005 and 2014.13 since there are documents related to the rolls-royce case in court, these documents have circulated in the media, so they cannot clearly explain the people involved in the bribery case. the eradication corruption commission officially named emirsyah satar, president of garuda indonesia from 2005 to 2014, as a suspect in corruption in the procurement of airbus and rolls-royce plc aircraft and aircraft engines. commodities worth usd 20 billion and 6 transparency international, corruption perception index 2020 (berlin: ti publisher: 2020). 7 transparency internasional indonesia, “peluncuran hasil indeks persepsi korupsi 2020: korupsi dan covid-19 memperburuk kemunduran demokrasi” (2021) 1–21. 8 ibid. 9 ibid. 10 ibid. 11 ibid. 12 transparency internasional indonesia, supra note 8. 13 satria unggul wicaksana prakasa, “garuda indonesia-rolls royce corruption, transnational crime, and eradication measures” (2019) 6:3 lentera huk 409. 238 | corporate legal liability for corruption in the private sector usd 2 million are found primarily in singapore and indonesia. according to the corruption eradication commission, emirsa was suspected of accepting bribes in this case. from 2005 to 2014, they provided 50 airbus sas aircraft for garuda indonesia.14 it causes a massive loss to the country's economic situation. currently, the scope of corruption is limited to state and business entities' losses whose assets belong to the state or are linked to state finances. corruption in business transactions in the public sector is on the rise, as is corruption in business groups in the private sector, similar to corruption in business licensing in the forestry department. various problems arise from the government. economic donations are not anticipated. moreover, as the country with 2% of the world's forest,15 indonesia is experiencing unusual forest degradation.16 it becomes the factor contributing to the decline in management expertise in producing round wood, indonesia's main forest product. in 2008 the number of active ministries reached 71%. in 2012 this figure had dropped dramatically to only 44%.17 the alleged high pay is inextricably linked to the country's corruption problem. corruption in the private sector can also have an impact on a country's development.18 corruption currently connects the government and the legislature in procuring goods and services, bribes, and awards. indonesia's business sector is closely related to bribery and extortion, as defined by bureaucracy and licensing. furthermore, corruption in the judiciary has exacerbated the situation, making it difficult for institutions to conduct fair and impartial 14 ibid. 15 in 2010, the total area of indonesian forest was recorded at 4 billion hectares. food and agriculture organizations of the united nations, 2020: state of the world’s forest, online: <https://www.fao.org/3/ca8642en/ca8642en.pdf>. 16 forestry statistics in 2012, deforestation continued to occur. in 2000-2006, deforestation reached 1,17 million hectares, and between 2006-2009 it reached 0,48 million hectares. ministry of environment and forestry, national forest reference emission level for deforestation and forest degradation (jakarta: directorate general of climate change, 2015). 17 komisi pemberantasan korupsi, titik rentan korupsi dalam perizinan usaha sektor kehutanan (jakarta: kpk ri, 2013). 18 ibid. 239 | indonesian journal of law and society trials.19 corruption poses numerous risks to society and individuals and politics, the national economy, and the bureaucracy. official barriers to eradicating corruption include structural, cultural, instrumental, and managerial barriers. as a result, steps must be taken to address these issues, such as designing and restructuring public services, increasing transparency, monitoring, sanctions, and strengthening anti-corruption support facilities. in law 31/1999, corruption is classified as harmful to state finances, bribery, public office embezzlement, extortion, fraud, procurement conflicts, and satisfaction. to eradicate corruption, comprehensive law enforcement, international cooperation, and harmonized legislation must be tried.20 this research aimed to examine how private sector corruption is linked to legitimizing bribery by foreigners as a form of corruption. being a country that welcomes foreign investors, the indonesian people must understand the most effective legal means of preventing companies and determining the jurisdiction and sovereignty of the indonesian law rule in preventing crime.21based on the facts stated above, the legal issues raised in this research are into two folds. the first is about the legal liability of corporations as perpetrators of corruption in the private sector. the second is about the legal liability of corporations as victims of corruption in the public sector and the legal mechanisms in place to help people understand corruption in the private sector in indonesia. 19 satria unggul wicaksana prakasa, “social control movement as a corruption eradication instrument in indonesia" (2020) 26:1 wacana hukum 21–30. 20 since the 1960s, several perspectives on how corruption has impacted the economy have emerged. according to popular belief, corruption harms the economy; it is toxic rather than a tonic. however, some believe that corruption can benefit the economy in certain situations, circumstances, and stages. before 1997, for example, indonesia and thailand were countries with rapid economic development despite high levels of corruption. this view was put forward by nathaniel h. leff, j.s. nye, david h. bayley, dan samuel huntington. see fethi ben jomaa ahmed (2003), "corruption: a sociological interpretative study with special reference to selected southeast asian case," ph.d. thesis, department of anthropology and sociology, faculty of arts and social sciences, university of malaya, kuala lumpur, at 140-149. 21 prakasa, supra note 14. 240 | corporate legal liability for corruption in the private sector ii. methods in this study, socio-legal legal means were used to analyze corruption as a national and international crime. this socio-legal approach is an attempt to investigate further and simultaneously investigate a problem by an insufficient study of related legal norms or doctrines, but also to see the context of norms and their enforcement in full related to the formation of laws to their application. if the general approach method is being used, it will not address the legal issues raised. the goal is to investigate parallel or hierarchical legal rules, particularly anti-corruption, and their relationship to the social control movement. the conceptual approach is the primary focus of legal research, particularly when discussing social control to combat corruption in indonesia. iii. corporation as perpetrator of corruption in the private sector in the english-indonesian legal dictionary written by s. wojowasito, wjs. poerwadarminta, sam. gaastra, jc. tan (mich) defines the term corrupt as rotten, not good, lecherous, lecherous, and misprinted. corruption, which means corruption, rottenness, bribery kkn has become a global problem that must be eradicated and incorporated into a government program to be seriously addressed and suppressed as part of a program to restore people's confidence and the international community to improve the country's economic development. transparency international shares a definition of corruption as an act of abusing power and public belief for personal wealth.22 in this interpretation, there are three factors of the interpretation of corruption, namely: 23 abusing or misuse of power; the entrusted power (either in the public or private zone) has business access or the advantage of 22 igm nurdjana, sistem hukum pidana dan bahaya laten korupsi, (yogyakarta: total media, 2009) at 14. 23 ibid. 241 | indonesian journal of law and society exercising power; individual benefits, not only always for the individuals who abuse power, but also for their family members and friends. a. corruption in the private sector as a country involved in a variety of international agreements, indonesia has ratified two significant international treaties, namely the united nations transnational organized crime (untoc) (indonesia ratified in law 5/2009) and the united nations convention against corruption (uncac) (indonesia ratified in law 7/2006), it is critical to regulating corruption in the private sector. one of the provisions of the uncac is that states parties should combat corruption in the private sector. article 12 of the uncac provides that each state party shall take steps under its basic domestic legal principles to prevent corruption in the private sector, improve accounting and auditing standards, and provide administrative or criminal sanctions for non-compliance with these acts when necessary. similarly, article 21 of the anticorruption convention strongly advises states parties to enact laws prohibiting bribery in the private sector. until now, what uncac has proposed has not been translated into legislation24 as an international legal instrument that can be used as a weapon for the indonesian corruption eradication comission or komisi pemberantasan korupsi (kpk), indonesia’s ex-officio of anti-corruption agency or other law enforcers in accommodating transnational corruption-state borders and multi-jurisdictional criminal acts. corruption in the private sector is a non-punishable offense. thus, the states that sign for the convention are not required to include these provisions in their domestic legislation. in general, the provisions of article 21(1) of the convention on private sector corruption are: “any person who leads or works in the private sector promises to give an improper advantage, either directly or indirectly. he or others intend to force the person to do or refrain from doing things contrary to their duties and obligations, which may be detrimental to economic or commercial activities. " private sector 24 prianter jaya hairi, “urgensi pengaturan penanganan tindak pidana korupsi di sektor swasta” (2018) x:24 info singk 6. 242 | corporate legal liability for corruption in the private sector corruption occurs both actively and passively in the form of economic loss. article 21 of the uncac requires participating countries to file criminal charges against corruption between companies (private) and governments(public), as well as corruption committed between the two or more companies (private). it delegated the prosecutor's duty and responsibility to file a lawsuit/claim against the private party in court, including that in indonesia.25 each member country must take measures under its national law's fundamental principles to avoid private sector corruption. they are such as improving accounting and auditing standards in the private sector, and if necessary, imposing effective civil, administrative, or criminal sanctions that compensate for the negligence proportionally. actions to achieve these goals may include increasing cooperation between the law enforcement agencies and the civil legal entities involved, encouraging the development of standards and procedures designed to protect the integrity of the private legal entities involved, such as correct, respectful, and appropriate precautionary codes of conduct in the conduct of business activities and all related professions, prevent conflicts of interest and increase the application of good commercial practices between businesses and in the contractual relationships of businesses with the state; increasing transparency among private legal entities, including actions involving the identity of legal entities and natural persons involved in the establishment and management of enterprises; and preventing abuse of civil legal entity procedures, including procedures governing subsidies and permits granted by public authorities for commercial activities. uncac criminalizes five actions that are mandatory offenses. they are (a) bribery of national public officials, (b) foreign public officials and officials of public international organizations, (c) embezzlement, misappropriation, or other diversions of property by a public official, (d) laundering of criminal proceedings, and (e) the obstruction of justice. trading in influence, abuse of function, illicit enrichment, bribery in the private sector, embezzlement of property in the private sector, and concealment are the 25 prakasa, supra note 14. 243 | indonesian journal of law and society other six actions with non-mandatory offenses. although it is not the obligation of each participating country to include corruption in the private sector in its national law, this provision must be incorporated into the revision of the anti-corruption law in the indonesian context. two provisions in the law on corruption eradication are related to private sector corruption. for starters, private sector bribery can be both active and passive. the second is private sector embezzlement. b. corporations as perpetrators of corruption when it comes to corporate issues, we cannot confine the concept to the realm of civil law. because the term “company” is closely related to the term “legal entity” (rechstpersoon), and the term “legal entity” itself is closely related to civil law. setiawan defined rechtspersoon as a legal subject. despite not being an individual, it has its own set of rights and obligations. it takes the form of an institution or organization made up of a group of people who have come together for a specific purpose and have certain assets. wirjono prodjodikoro, on the other hand, stated that a company is a group of people. typically, the people involved in a company are company members. these members have authority in company regulation and are the supreme members. members meeting. a tool of power in company regulations. furthermore, abidin stated that a corporation is the reality of human associations granted rights under the law, which are granted by legal persons, for specific purposes.26 in general, there is no discernible difference in the definition of criminal behavior between dualists and dictators. those who have committed a criminal act may already have been convicted. in contrast, dualism holds that conviction is not sufficient unless it is accompanied by conditions of criminal liability borne by the one who committed it. a person must be held accountable for his actions under dualism, or that action is held accountable to that person from the perspective of his actions and adheres to the principle of "letting no one wrong in punishment." in this case, 26 rony saputra, “pertanggungjawaban pidana korporasi dalam tindak pidana korupsi” (2018) 15:1 spektrum huk at 44. 244 | corporate legal liability for corruption in the private sector dualism contends that even if a person is proven to have committed a criminal act, he cannot be automatically convicted. instead, it must first be established whether he can be prosecuted criminally against the criminal act he committed.27 article 20 (1) and (2) of the current law state unequivocally that a company or a company representative who has committed a criminal act of corruption may file criminal charges and penalties against the corporation and/or its management. while individuals commit the criminal act with employment or other relationship with the corporation, the corporation commits the crime. thus, the act is committed individually or collectively within the company environment. this condition is evident at first glance.28 the criminal code only views people as criminal law subjects, while organizations are not seen as subjects. however, in the turn of additional events, in unique criminal laws, for example, law number 7 drt. 1955 on investigation, repression, and incorrect financial equity, law 31/1999 as revised by law 20/2001 concerning amendments to law 31/1999 on the elimination of defamation violations, unofficial law substitute speech 1/2002 on destruction of crime of intimidation as regulated in law based on law 15/2003 on specifications of unofficial law in lieu of law 1/2002 on eradication of criminal demonstrations of psychological oppression, as in sectoral laws and regulations and guidelines that contain regulatory penalties, for example, law 32/2009 on ecological safety and the executors, law 22/2001 concerning oil and natural gas, law 41/1999 on forest guard services, law 4/2009 on mineral and coal mining, and others. based on the above regulations, companies as valid criminal law subjects.29 from a legitimate conventional standpoint, we only see defamation violations in public spaces, specifically, all demonstrations or forms of 27 ibid. 28 hiariej, supra note 2. 29 achmad ratomi, “korporasi sebagai pelaku tindak pidana (suatu pembaharuan hukum pidana dalam menghadapi arus globalisasi dan industri)” (2018) 10:1 j al’adl 1–22. 245 | indonesian journal of law and society humiliation defined in law 31/1999 and law 20/2001 on debasement. the focal point of consideration is public authority/government representatives/government employees.30 it is impossible to deny that an organization has a distinct personality separate from its investors, leaders, and other company officials. organizations can manage a property, enter into contracts, sue, and be sued. the owner or investor can respect limited liability; they are either responsible or not for the company's obligations or liabilities. according to the natural hypothetical approach, the original task of the partnership is in the design, arrangement, and authoritative way of life used in the organization.31 regarding the subject of corporate criminal law, the value destruction law is one of the criminal laws that exist outside the criminal code. article 1 of law 31/1999 on the destruction of defamation violations as amended by law 20/2001 regarding the correction of law 31/1999 concerning the destruction of defamation states that what is meant by "everyone" refers to either an individual or a business entity. article 1 point 1 defines "company" as being managed jointly by people and/or resources coordinated either as legal elements or as illegal materials. it revised law 3/1971 because it did not include the company as a legal subject.32 the supreme court provided the court guideline 13/2016, which regulates the procedures for handling criminal cases carried out by companies and announced in the state newspaper 2058/2016 on 29 december 2016. this guideline is designed to deal with instances of corporate pollution. one of the reasons for issuing the court guidelines was that the company's investigation system was not clear as a demonstration of degrading crime to determine whether the company was a criminal demonstration. article 1 (8) of court guidelines 13/2016 explains: "company misconduct refers to criminal demonstrations for which the partnership may face criminal charges under the companies act. 30 marbun, supra note 1. 31 rahmi dwi sutanti, “kebijakan formulasi tindak pidana korupsi di sektor swasta” (2016) research report, diponegoro university. 32 ibid. 246 | corporate legal liability for corruption in the private sector this guideline is in charge of the organization in charge of submitting defamation claims. it acknowledges that this guideline is insufficient to address the problem of defamation, including corporate defamation, but it can exacerbate the government's arduous tasks in enforcing the law.33 bribery issues that occur in transnational corporations, supplemented by multiple meetings, including public authorities and individual financial managers, can be interpreted as either dynamic (giving/promising earning) or inactive (receiving/asking) direct contributions, including organizations making a profit in business, particularly for organizations around the world looking for a global deal. these exchanges combine the simplicity of authorization from the public authorities of the concerned country or office arrangements in winning business tenders and contracts in countries where these deteriorating practices occur. deteriorating business practices violate good business administration standards, as communicated in relevant state law and global legal guidelines. the following comparison can be used to broadly explore corporate acts of corruption/bribery against state officials and fellow business competitors (private entities): 34 form of corruption/bribery origin of corruption/ bribery recipient of corruption/ bribery general office corruption or bribery or private bribery company (e.g., employees, subsidiaries, intermediaries and agents, board of directors) public officials (diplomats, representatives, politicians, and law enforcement officers from relevant states) of competing firms, directors, vendors/opponents table 1. concept of corruption and transnational bribery 33 muridah isnawati, supra note 3. 34 prakasa, supra note 14. 247 | indonesian journal of law and society indonesia has law 30/2002 on the commission for the eradication of defamation as revised by law 19/2019 as conventional law regarding consent to the kpk. simultaneously, accepting pollution as a significant legal premise, we can allude to law 31/1999 concerning the destruction of value, revised by law 20/2001, the same as the related laws and regulations. guidelines in indonesia. several types of insults are listed in the counter defilement act. they are rewards, misuse of public assets, extortion, enemies at risk from humiliation arrangements, labor and product contamination, tips, and degradation of useless value for state funds.35 on the other hand, the lack of law enforcement through the instrument of law 11/2018 requires attention. because private sector bribery is not included in the scope of corruption, the kpk, as an independent state institution dealing with corruption issues, is not authorized to eradicate, prevent, and monitor it. therefore, under uncac recommendations, it is time to include bribery in the private sector in the law as part of a comprehensive effort to eradicate corruption.36 law number 8 of 2010 concerning tax avoidance and destruction of tax avoidance actors is a type of legislative criminal law problem that forces middle-class criminals to beat them in committing their crimes, mainly when indonesia is still in a state of financial emergency. the presence of this law firmly upholds the implementation of the law in maintaining the links between state finances and monetary robustness in criminal law. to avoid and eliminate tax evasion errors, a strong legal entity is required to ensure valid confidence, the sufficiency of legal authorizations, and ongoing recognition and return. criminal demonstration. when it is done, the perpetrators of the criminal demonstration try to conceal the origin of the resource resulting from the criminal demonstration differently. consequently, the resource that arises 35 prakasa, supra note 19. 36 fariz cahyana, “urgensi pengaturan suap di sektor swasta sebagai tindak pidana korupsi di indonesia” (2020) 3:1 jurist-diction at 61. 248 | corporate legal liability for corruption in the private sector from the offense is complex for legal authorities to follow to use these resources for a legitimate and criminal operation openly.37 article 14 of law 20/2001 concerning amendments to law 31/1999 on the destruction of defamation explicitly states that: everyone who violates the legal regulation clearly states that the legal regulation is a criminal demonstration of humiliation managed by this law. the regulation of article 14 of law number long term 1999 is possibly expected to become a regulation that can increase the scope of the defamation destruction law to other legal regulations. this regulation is an agreement that the enactment of subsequent regulations will fill in. however, the regulation of article 14, which is separate from extension development, is also a limitation of the application of the corruption eradication law, so the space of legitimate guidance from lex experts purposefully criticizing lex generalis should be considered towards an extension of the defamation destruction act. until now, no other legal guideline has specified this law regulation as a criminal demonstration of defamation.38 administrative arrangements for criminal approval are included in the managerial. understanding criminal law has progressed as a result of lex specialis lessons. lex specialis standard no longer only discusses the neglect of the general guidelines (lex generalis) but has also provided a complex and structured criminal law arrangement, arguing that explicit and extra-systematic laws outside the criminal code have fallen into disuse.39 the law on corruption eradication regulates criminal acts of corruption in indonesia, regulated under criminal offenses outside the criminal code or lex specialis. the corruption eradication law, which regulations are outside the criminal code and the money laundering criminal act, the banking act, the tax law, is a product of the administrative penal law, which contains conditions governing criminal sanctions. lex specialis teachings have become increasingly important in understanding criminal 37 roni efendi, “kewenangan komisi pemberantas korupsi dalam melakukan penuntutan money laundering” (2018) 17:1 juris j ilm syariah 117. 38 ifrani, “penerapan undang-undang tindak pidana korupsi terhadap tindak pidana di bidang kehutanan" (2016) 8:2 al 'adl at 1. 39 ibid. 249 | indonesian journal of law and society law. lex specialis principle not only discusses the waiver of lex generalis, but it has also provided criminal law solutions of such complexity and form as a result of specific laws and extra codification or that are outside the criminal code.40 in addition, as a part of the international anti-corruption convention, indonesia has ratified the un convention against corruption in law 7/2006. consequently, indonesia is obligated to implement and abide by it. ratification is required to make it a national law and regulate the indonesian mechanism for dealing with corruption cases. according to the anti-corruption convention, the previous anti-corruption law did not regulate various new corruption crimes, such as foreign bribery, affecting trade, private sector corruption (private sector bribery) to substantial self, getting rich illegally, and so on.41 the general public assists the social control cycle through the state without degradation. according to uncac, three flaws will be further investigated. they are impact trade-offs, illegal escalation, and private territory destruction. first, consider the 'trading in impact' provision in uncac in article 18. the words of article 18 are as follows when elaborating on their true meaning: “each meeting of nations may consider taking authoritative estimates, and various considerations are essential for determining criminal offenses, each time made on purpose: guarantees, offers or blessings to public authorities or other individuals, either directly or indirectly, an advantage that cannot be justified in order for the public authority or individual to misuse it or see the impact to obtain from a managerial position or the general population from a state gathering. the unnecessary benefit to assist the actual demonstration provocateur or for some other individuals. requests or recognition by public authorities or other individuals, directly or indirectly, of excessive benefits for himself or others so that the public authority or individuals misuse it or see its impacts to obtain excessive benefits from authoritative power or policy management of the meeting of nations.42 40 ibid. 41 suw prakasa, et al., "social aid of covid-19 corruption: strategy and mitigation policy of muhammadiyah east java" (2021) 29:1 leg j ilm at 27. 42 hiariej, supra note 2. 250 | corporate legal liability for corruption in the private sector second, illegal enhancement in uncac article 20 states that subject to the constitution and fundamental standards of law generally, each participating country shall consider adopting authoritative measures and different estimates that may be required to establish as a criminal demonstration, whenever carried out deliberately, illicit enrichment, that is, an enormous increase in public authority resources that cannot be disclosed in a reasonable proportion to their lawful income. third, regarding debasement in private areas contained in uncac, it consists of repayment and abundance diversion in private areas. this is a new regulation for the removal of defilements. although debasement in the private sphere is an unrequired violation, it must be considered as a criminal demonstration of defamation because it is global and public law, the rules of civitas maxima are under the monism hypothesis, which considers global and public law as a single framework by elevating global law above public law.43 iv. corporate legal liability mechanism for corruption a. non-adjudication as stated in articles 43 to 50 of uncac, the goal of state cooperation is for countries where corruptors have escaped to work together to arrest and fire them. it asserts that the country from which corruptors flee has made an ethical commitment not to provide certainty and a different position to the evil one. while the state creates an ideal environment for the corruptors, uncac does not administer the legitimate authorizations imposed on the nation but instead relies on the broad standard perceived in international law (general standard of global law). the country involved cannot rely solely on the moral agreements as a refusal from global local areas but must also rely on various supports, for example, monetary prohibition. uncac on article 43 states that the countries involved are required to cooperate on criminal matters where necessary and reliable with their respective common legal instruments. states parties will consider assisting one another with the test and legal procedures on general and 43 ibid. 251 | indonesian journal of law and society authoritative matters relating to insult. as a consequence, the type of global participation that can be resolved at a time when the resources arising from degrading criminal demonstrations abroad, such as those controlled at uncac. first, extradition is possible by considering the offense committed is remembered for two guilt feelings.44 second, mutual legal assistance. mutual legal assistance (mla) is a type of collaboration that can put the star into effect. in the event of debasement, the presence of mla is critical in passing the arrival of resources. the mla tier includes hearings, indictments, and court procedures against complaints, which significantly focus on participation by states, state names, and reciprocal and multilateral companies. mla's position must also be recognized as one of comprehension and abolition. third, joint investigation. a two-sided or multilateral arrangement should be formed for joint investigation. if no arrangements have been made for joint examinations, joint examinations will be conducted by mutual consent, depending on the circumstances. fourth, law enforcement cooperation. cooperation between state lawyers (parties) with their separate legal instruments and governments is required to ensure continuity of legal requirements activities in combating violations due to the 2003 uncac show consequences. collaborative legal authorization can also be defined as a two-sided or multilateral arrangement for coordinating legal authorizing organizations' participation and adapting any arrangements or game plans to exist assumptions. the mutual understanding between the defilement annihilation commission (kpk) and the us government customs investigation (fbi) describes the different types of law enforcement cooperation. fifth, special investigative techniques. strategies for exceptional analytical methods such as electronic observation or various types of surveillance or covert assignments within its domain and allowing evidence obtained from such exercises to be acknowledged by courts. 44 abdul manan un, “pembaharuan hukum dalam tindak pidana korupsi pasca ratifikasi konvensi anti korupsi tahun 2003”, (2018) 2:2 maleo law journal at 195–221. 252 | corporate legal liability for corruption in the private sector b. adjudication the liability mechanism and the criminal framework are directed in detail, more specifically in criminal demonstrations of defamation committed by or for companies, requests and feelings regarding the partnership and/or its administration can be made. on the other hand, discipline can be prosecuted and terminated if resolved by or for the organization's benefit. consequently, it is done against "partnerships and chairmen" or against companies. in addition, to acknowledge that the criminal demonstrations are degrading to be carried out by partnerships, this method is carried out by individuals who are reliant on employment relationships and other connections, acting in the professional workplace both independently and in general.45 the government reforms the organization to the extent that discipline is enforced collaboratively. other people may be in charge of the company's administration. aside from that, the judge can direct the company's administration to appear in front of the court's judgment. the appointed authority can direct the administration that will be brought to court. at that time, the face-to-face summons and its transmission will be forwarded to the administration. given the addition of one criminal regulation, the only basic discipline that can be postponed against an organization is acceptable. there are types of corporate disciplines due to various translations in the use of the company as a legal subject. in this regard, there are four examples of feelings towards companies, namely: first, collaborating with the defendant and being charged in court, and discipline ends after administration is first positioned, and discipline is chosen to endure according to law. power (inkracht). second, the company was named a defendant in court and sued, and the discipline was terminated without prior to the administration's discipline. third, the criminal verdict on the mysterious public examiner's recording records without being made a 45 budi suhariyanto, “pertanggungjawaban pidana korporasi berdasarkan corporate culture model dan implikasinya bagi kesejahteraan masyarakat” (2017) 6:3 j rechts vinding media pembin huk nas at 441. 253 | indonesian journal of law and society defendant. fourth, organizations are criminalized without being prosecuted and prosecuted by public investigators.46 the issuance of the supreme court's guidelines 13/2016 fills the legal void, especially criminal technical law in handling criminal cases with corporate entertainers and leaders. it can be a milestone helping legal experts in criminal management, the case with the entertainer, and the company's head to determine the adequacy and increase in criminal cases handled by entertainment companies and management. to understand the solidarity of understanding, perma characterizes corporate criminal demonstrations, particularly criminal demonstrations conducted by people who depend on work connections or different connections, either independently or as a whole, or representative persons for the benefit of the organization inside or outside the professional workplace. perma emphasizes that in committing excessive wrongdoing against a company, the appointed authority can provide a failure assessment as follows: first, partnerships can gain or benefit from criminal demonstrations or criminal demonstrations conducted in support of the organization; second, the activities that occur are not fraudulent; or third, the company does nothing to make it safe, preventing a more essential and more certain effect on the relevant legal regulations for avoiding criminal demonstrations. the three types of corporate misconducts controlled by this guideline 13/2016 above show the willingness of the high court to reimpose the corporate criminal risk framework that has not been directed and managed so far. the corporate criminal risk plan accuracy will have far-reaching consequences in the legal requirements system because missteps or deficiencies in this detailed strategy are critical mistakes. it can prevent error avoidance and control at the execution stage, given that the main principle is specialized in adjudicating criminal liability. the company, involving error evidence, has significant work in the early hours to clarify how many public investigators have to show and what the jury needs to 46 ibid. 254 | corporate legal liability for corruption in the private sector focus on in finding company error during the evidence interaction as the premise of the decision.47 in addition, the kpk is an independent state institution in dealing with corruption eradication. according to law 30/2002 on the corruption eradication commission, the commission must regulate with an approved organization to eradicate defamation. it should also organize approved offices to destroy insults, complete examinations and indications of defamation, take measures to prevent degrading criminal demonstrations, and screen state organizations. however, the kpk has not agreed to complete the vandalism, anticipation, and payoff demonstrations in private areas because these are not included in the scope of the degrading criminal demonstrations mentioned in the defamation law. v. conclusion the regulation of corruption in the private sector, as stated in uncac, is limited to prohibited acts but are not yet a crime because there is no criminal agreement in them. as a state party to the indonesian anticorruption association of nations convention, it is necessary to make strict legal arrangements related to corruption in the private sector, currently under corporate criminal responsibility in indonesia. the criminal liability of corporations will be directed at investigating criminal law strategies similar to those in different countries to develop a criminal law strategy and justify any deficiencies in criminal law regulations that currently exist in indonesia regarding the difficulty of tracking down corruption perpetrators from the private sector. the crime of private bribery as a form of corruption in the private sector needs to be regulated in the revision of the anti-corruption law. consequently, indonesia should take cooperative action and take legal action against transnational organized corruption crimes. among the various actions taken between member countries is through mutual legal assistance (mla). it is a framework for overcoming restrictions, including other cooperative actions, such as extradition, as a legal mechanism that indonesia can adopt to 47 ibid. 255 | indonesian journal of law and society request cooperation with other countries related to transnational corruption crimes. through the bilateral technology agreement mechanism, anticorruption work can be carried out comprehensively, especially in eradicating cross-border corruption according to the recommendations from uncac in 2003. references abbas, k.a., the cancer of corruption, in suresh kohli (ed.), corruption in india (new delhi: chetana publications, 1975). abdul manan un, “pembaharuan hukum dalam tindak pidana korupsi pasca ratifikasi konvensi anti korupsi tahun 2003” (2018) 2:2 maleo law journal. ahmed, fethi ben jomaa, "corruption: a sociological interpretative study with special reference to selected southeast asian case," ph.d. thesis, department of anthropology and sociology, faculty of arts and social sciences, university of malaya, kuala lumpur (2003). cahyana, fariz, “urgensi pengaturan suap di sektor swasta sebagai tindak pidana korupsi di indonesia” (2020) 3:1 jurist-diction. djaja, ermansjah, meredesain pengadilan tindak pidana korupsi (sinar grafika: jakarta, 2010). efendi, roni, “kewenangan komisi pemberantas korupsi dalam melakukan penuntutan money laundering” (2018) 17:1 juris j ilm syariah. food and agriculture organizations of the united nations, 2020: state of the world’s forest, online: <https://www.fao.org/3/ca8642en/ca864 2en.pdf>. gunawan, ilham, postur korupsi di indonesia: tinjauan yuridis, sosiologis, budaya, dan politis (bandung: angkasa, 1990). hairi, prianter jaya, “urgensi pengaturan penanganan tindak pidana korupsi di sektor swasta” (2018) x:24 info singk. 256 | corporate legal liability for corruption in the private sector hamzah, andi, pemberantasan korupsi melalui hukum pidana nasional dan internasional (jakarta : rajawali pers, 2008). hiariej, eddy o.s., “korupsi di sektor swasta dan tanggung jawab pidana korporasi” (2020) 49:4 masal-masal huk. ifrani, “penerapan undang-undang tindak pidana korupsi terhadap tindak pidana di bidang kehutana" (2018) 8:3 al 'adl. komisi pemberantasan korupsi, titik rentan korupsi dalam perizinan usaha sektor kehutanan (jakarta: kpk ri, 2013). marbun, a.n., “suap di sektor privat: dapatkah dijerat?” (2017) 3:1 j anti korupsi integritas 53–85. muridah isnawati, “arah penegakan hukum tindak pidana korupsi oleh korporasi dalam sistem hukum pidana nasional” (2017) 2 118. nurdjana, igm, sistem hukum pidana dan bahaya laten korupsi, (yogyakarta: total media, 2009). prakasa, suw, et al., "social aid of covid-19 corruption: strategy and mitigation policy of muhammadiyah east java" (2021) 29:1 leg j ilm. prakasa, satria unggul wicaksana, “garuda indonesia-rolls royce corruption, transnational crime, and eradication measures” (2019) 6:3 lentera huk. satria unggul wicaksana prakasa, “social control movement as a corruption eradication instrument in indonesia" (2020) 26:1 wacana hukum 21–30. rahmi dwi sutanti, “kebijakan formulasi tindak pidana korupsi di sektor swasta” (2016), research report, diponegoro university. ratomi, achmad, “korporasi sebagai pelaku tindak pidana (suatu pembaharuan hukum pidana dalam menghadapi arus globalisasi dan industri)” (2018) 10:1 al 'adl. saputra, rony, “pertanggungjawaban pidana korporasi dalam tindak pidana korupsi” (2018) 15:1 spektrum huk. 257 | indonesian journal of law and society singh, khushwant, “are we a corrupt people?”, in suresh kohli (ed.), corruption in india, new delhi: chetana publications, 1975). suhariyanto, budi, “pertanggungjawaban pidana korporasi berdasarkan corporate culture model dan implikasinya bagi kesejahteraan masyarakat” (2017) 6:3 j rechts vinding media pembin huk nas. transparency internasional indonesia, “peluncuran hasil indeks persepsi korupsi 2020: korupsi dan covid-19 memperburuk kemunduran demokrasi” (2021) 1–21. transparency international, corruption perception index 2020 (berlin: ti publisher: 2020). widjojanto, bambang, “kajian awal melacak korupsi politik di korporasi” (2017) 3:1 j antikorupsi integritas. 258 | corporate legal liability for corruption in the private sector this page intentionally left blank microsoft word 24565-edited.doc indonesian journal of law and society (2021) 2:2 121-144 issn 2722-4074 | https://doi.org/10.19184/ijls.v2i2.24565 published by the university of jember, indonesia available online 30 september 2021 _____________________________ * corresponding authors’ e-mail: dnltania@gmail.com female genital mutilation as violence against women: a narrative of promoting abandonment rizky akbar idris university of indonesia, indonesia muhammad pramadiathalla university of indonesia, indonesia tania daniela* university of indonesia, indonesia abstract: today, women and girls are less likely to undergo female genital mutilation (fgm) than decades ago. however, the practice is still near-universal in some countries. fgm is still practiced because societies still hold their traditional values and norms. according to unicef, at least 200 million women and girls have been subjected to the practice in 30 countries, mainly those in asia and africa. this study aimed to analyze fgm as violence against women relating to the communities and their beliefs by addressing the status quo and the legality of fgm practices in indonesia, egypt, and yemen. it accounted for the state's role in preventing, handling, and safeguarding the victims of fgm practices. this study used the socio-legal method by critically analyzing the legislation for further implications for legal subjects. this study showed that fgm was a form of violence against women which have a role in the perpetual violation of women's rights. it identified the difference in practice, prevalence, legality, and the state's role in fgm in indonesia, egypt, and yemen. it suggested to prevent fgm practices through mobilizing political will and funding, strengthening healthcare providers' awareness and knowledge, building a supportive legislative and regulatory environment, and reinforcing monitoring, evaluation, and accountability. keywords: women’s rights, female genital mutilation, violence against women. copyright © 2021 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 10/06/2021 reviewed: 19/07/2021 revised: 13/09/2021 accepted: 14/09/2021 how to cite: idris, rizky akbar, et al., “female genital mutilation as violence against women: a narrative of promoting abandonment” (2021) 2:2 indonesian journal of law and society 121-144, online: <https://doi.org/10.19184/ijls.v2i2.24565>. 122 | female genital mutilation as violence against women: a narrative of promoting abandonment i. introduction female genital mutilation (fgm) is violence against women manifested due to patriarchal culture. it is any procedure or action aimed at removing part or all of the external genital organs of a woman in the name of culture, custom, religion, or other reasons other than health or healing reasons.1 fgm is practiced for cultural, customary, or religious reasons rather than health reasons. it is included in violence against women because the practice violates women's rights. it subsequently becomes a form of violence against women.2 it can cause severe physical and mental health impacts, especially for girls and women.3 in addition, fgm also can cause complications, either directly or in the long term.4 fgm is a phenomenon that has been rife in many countries, particularly those in africa and asia. according to unicef, fgm affects at least 200 million women and girls in 30 countries.5 the types practiced among countries vary by location, ethnicity, and customs. however, around 90% of fgm cases include clitoridectomy or excision, with the remaining 10% including infibulation, which has the most severe repercussions.6 it is still carried out based on traditions and social norms to ensure that women can be accepted into society and married and uphold the family's status and honor.7 this study focuses on fgm in indonesia, egypt, and yemen. these are muslim majority countries whose beliefs are mainly why fgm is practiced. nevertheless, the government's and the people's stance on the issue presently differ from one country to another. fgm in indonesia is primarily rooted in its customs and religious beliefs. the indonesian 1 sulistyowati irianto, perempuan & hukum: menuju hukum yang berperspektif kesetaraan dan keadilan (jakarta: yayasan obor indonesia, 2006) at 490. 2 siti n hodijah, et al., persimpangan antara tradisi dan modernitas hasil kajian kualitatif praktik pemotongan/pelukaan genitalia perempuan (p2gp) di 10 provinsi 17 kabupaten/kota (komnas perempuan, 2018) at 75. 3 female genital mutilation in malta: a research study (ncpe, 2013). 4 unicef, statistical profile on female genital mutilation/cutting (new york: unicef, 2016) at 1. 5 ibid. 6 who, understanding and addressing violence against women: female genital mutilation (world health organization, 2012). 7 unicef, supra note 4 at 1. 123 | indonesian journal of law and society government has not made any significant efforts to suppress fgm because of pressures from fundamentalist muslims. fgm in egypt has been prevalent since the days of pharaohs in ancient egypt and continues because of religious or cultural reasons. although the egyptian government has passed legislation prohibiting fgm, its practice remains in egypt. concurrently, fgm in yemen has faced some decrease in popularity among its populace. however, the yemeni government's efforts to ban fgm face some resistance from the conservative groups in the parliament. this study aimed to analyze fgm as violence against women relating to the communities and their beliefs by addressing the status quo and the legality of fgm practices in indonesia, egypt, and yemen. it accounted for the state's role in preventing, handling, and safeguarding the victims of fgm practices. this study develops an alternative, by focusing on the legal measures that the indonesian government can take to promote the abandonment of fgm practices. then, the government should establish a legal framework to promote the fgm abandonment and a supportive legal and educational framework with national guidelines and policies to guide all types of healthcare providers. this study consists of two parts of the discussion. the first part deals with the overview of fgm as violence against women with the following practices in several countries, such as indonesia, egypt, and yemen. the second part analyzes fgm issues, followed by the way in promoting the fgm abandonment. ii. methods this study used the socio-legal method, which conducted contextual studies in which legislations were critically analyzed and explained for further implications for legal subjects. this research was examined through library or literature materials by collecting and reviewing primary and secondary legal materials in legislation and literature relevant to the research object. the analysis used was descriptive, which described the phenomenon under study. the analysis was carried out by connecting the cause and effect with the phenomenon's emergence under study. 124 | female genital mutilation as violence against women: a narrative of promoting abandonment iii. fgm: what it is and why it continues a. fgm as violence against women the world health organization (who) defines fgm, commonly known as female circumcision in indonesia, as "any procedure that partially or completely removes the external genitalia, or injures the female genital organs for non-medical reasons."8 according to who, fgm is classified into four types. the first type involves the partial or complete removal of the clitoris, also known as clitoridectomy; follows.9 the second type is excision, defined as partial or total excision of the clitoris and labia minora, with or without cutting the labia majora.10 the third type is infibulation, a narrowing of the vaginal entrance caused by forming a septum. the septum is created by suturing the labia minora or majora and cutting or changing their shape, with or without clitoridectomy.11 the fourth type is all sorts of non-medical harm being done to the female genital organs, such as piercing, incising, and rubbing something into the vaginal area.12 violence is frequently perpetrated against women or used as a form of oppression against women. it gave rise to new terminology, namely genderbased violence. the definition of 'gender-based violence' refers to the general recommendation of the convention on the elimination of all forms of discrimination against women (cedaw) number 19 point 1. it states as follows: "gender-based violence is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms based on equality with men.” 13 8 who, eliminating fgm: an interagency statement onhchr, unaids, undp, uneca, unesco, unfpa, unhcr, unicef, unifem, who (geneva: world health organizaton, 2008) at 1. 9 who, types of fgm, online: world health organization <https://www.who.int/ teams/sexual-and-reproductive-health-and-research/areas-of-work/female-genitalmutilation/types-of-female-genital-mutilation>. 10 ibid. 11 ibid. 12 ibid. 13 united nations, convention on the elimination of all forms of discrimination against women, 3 september 1981 (general recommendations no. 19, on article 1, 125 | indonesian journal of law and society this definition provides a common understanding of gender-based violence globally. gender-based violence is essentially related to the lack of awareness of women's human rights. it includes all types of violence based on gender differences that result in or will cause pain or suffering to women, including threats, coercion, restrictions on freedom both in the public and domestic arenas.14 violence against women occurs due to gender inequality, the condition of unequal relations between women and men, and is characterized by a less effective and robust relationship between the two. various violence against women cannot be separated from the context of patriarchal cultural values and views, which always position women as objects and are on the side of the oppressed where it has entered all life structures.15 this culture shackles women's freedom to play an active role and contribute to society. the patriarchal culture also causes men's dominance in society's social structure to justify the oppression of women. as a manifestation of patriarchal culture, fgm is carried out to control women's sexuality and social life, which violates women's fundamental rights and freedoms as human beings. it encourages women discriminated against based on gender. then, it has violated women's health rights because it removes women's body parts needed for the satisfaction and security of their sex life. it violates the highest standards for physical and mental health that women have. there is a health risk from the implementation of fgm, namely death.16 in addition, it has explicitly violated the right to life because humans (women) should be free to determine their own lives. however, it is never based on involving women who do it (because most of it is done at the age of children).17 then, it is paragraph 1, of the convention on the elimination of all forms of discrimination against women, on violence against women, para. 1.) 14 rifka annisa, tindak pidana kekerasan terhadap perempuan dan anak (yogyakarta: rifka annisa women’s crisis centre, 2006) at 1. 15 muhammad r a farid, “kekerasan terhadap perempuan dalam ketimpangan relasi kuasa: studi kasus di rifka annisa women’s crisis center” (2019) 14:2 jurnal studi gender at 179-180. 16 marlianda o erwanti, “kajian yuridis fgm (fgm) dalam perspektif hak asasi manusia (studi terhadap praktik fgm di indonesia)” (2012) 1:4 diponegoro law review at 7. 17 komnas perempuan, supra note 4 at 76. 126 | female genital mutilation as violence against women: a narrative of promoting abandonment also thick with the power relationship between children and their parents. this inequality makes fgm continue to be carried out even if the woman says no to its practice.18 fgm violates not only women's rights but also children's rights. fgm can potentially inflict violence and exploitation of children because of the power of parents over the child's body which seems limitless. in cases of violence and exploitation of children in the family, most of the cases occurred because the authority of parents over their children seems limitless. based on this authority, parents can argue that they have the right and authority to determine. while the girl has no control over her own body until her body has been defined and controlled through a set of traditions such as fgm. it is considered unfair because it is carried out toward baby girls who have not expressed their own opinion about how they want their bodies to be treated. so what happened later, children were 'forced' to accept fgm treatment in the name of religion and culture/tradition. the fgm tradition is not under the principles of giving freedom to children (child liberation), where children's rights are interpreted as giving freedom to children as independent individuals. by doing fgm on girls, a child is not a subject of rights. if a child no longer has the right to herself, then the potential for violence and exploitation is even more significant. in this context, the fgm tradition is contrary to the principles of child protection, especially for girls.19 therefore, fgm is a form of violence against women that endangers and robs women and girls of their rights.20 nevertheless, fgm is still carried out because it is based on traditions and social norms to ensure that women can be accepted into society and married and uphold the family's status and honor.21 18 komnas perempuan, kertas konsep pencegahan dan penghapusan pemotongan/ pelukaan genitalia perempuan (p2gp) (jakarta: komnas perempuan, 2019) at 20. 19 jauharotul farida, et al., “sunat pada anak perempuan (khifadz) dan perlindungan anak perempuan di indonesia: studi kasus di kabupaten demak” (2017) 12:1 sawwa at 390-391. 20 komnas perempuan, supra note 4 at 77. 21 who, supra note 6 at 1. 127 | indonesian journal of law and society b. fgm practices in several countries this study primarily delves into fgm practices in indonesia, egypt, and yemen. the similarity between these countries is that they all have a majority of muslims among their population, whose beliefs are the reason fgm is practiced, to begin with.22 still, the government's position and the people on the issue of fgm are different in each country. 1. indonesia in indonesia, fgm is more typically referred to as "female circumcision." this is because the practice of female circumcision in indonesia does not necessarily fall into fgm forms, as suggested by the who. female circumcision often does not entail removing a portion or most of the clitoris of the female genitalia in indonesia. the practice of female circumcision is performed in a variety of methods according to the community's customs and culture, yet based on basic health research (riset kesehatan dasar) held in 2013 by the national institute of health research and development. it was part of the health ministry, the who classifies fgm in indonesia into first and fourth types.23 symbolic circumcision (symbolic only gestures) and circumcision with little actual cutting are the two forms of female circumcision practiced in various parts of indonesia.24 an example of symbolic circumcision is practiced in java. in java, fgm is performed symbolically by touching something to the female genitalia, which is done by placing turmeric on the girl's clitoris, cutting or slicing the tumeric, and then throwing the turmeric pieces into the sea or burying them.25 it is different from the circumcision performed by cutting a small portion of the female genitalia. it is like removing a tiny part of the clitoris with a razor by a dukun (shaman), the community's elder, and 22 ibid. 23 komnas perempuan, supra note 4 at 3. 24 basilica d putranti, “to islamize, becoming a real woman or commercialized practices? questioning female genital cutting in indonesia” (2008) 3:2 finnish journal of ethnicity and migration at 26. 25 komnas perempuan, supra note 4 at 26. 128 | female genital mutilation as violence against women: a narrative of promoting abandonment practicing circumcision, as the sasak tribe sumbawa practiced.26 each practice of fgm can be regarded and accepted differently in the community. it occurs, and as a result, fgm continues to be practiced. fgm has existed across generations for a long time because of the strong heritage of community cultural values, religions, and other beliefs. communities of indonesia believes that it has several aims, to be specific, to maintain purity, health, and beauty of women's bodies27, to exert control over women's sexuality and reproduction28, to preserve the status quo of unequal and unjust gender relations29, and religious purposes.30 because of these aims, members of the community, especially parents, are pressured by society to circumcise their female children. for example, the muslim community reinforces it, particularly in jambi, where it is performed under muslim traditions and religious guidance.31 a similar situation occurs in west sulawesi, where females are obliged to be circumcised. circumcision is considered a marking of a muslim woman both in the world and in the afterlife.32 subsequently, there are also views in some communities that believe if women do not have their genitalia circumcised, god will not recognize or accept their worship. in addition to achieving religious aims, fgm has a function in defining the desired expression of sexuality in conformity with the gender roles established in society.33 it acts as an instrument to restrict individual sexual activity and create a feminine image and a sense of powerlessness in women.34 some muslims believe that female child who is not circumcised will grow up to be debauched or degenerate women.35 negative stigmas 26 ibid. 27 agus hemanto, “khitan perempuan antara tradisi dan syari’ah” (2016) 10:1 kalam: jurnal studi agama dan pemikiran islam at 268. 28 ibid at 267. 29 ibid. 30 ibid at 269. 31 komnas perempuan, supra note 4 at 119. 32 ibid at 121-122. 33 basilica d putranti, “sunat perempuan: cerminan bangunan sosial seksualitas masyarakat yogyakarta dan madura” (2005) 16:1 populasi at 97. 34 ibid at 98. 35 ibid. 129 | indonesian journal of law and society such as wicked, nasty, and impure women linked to these women being cast off by the community encourage families, particularly parents, to circumcise their daughters. in indonesia, fgm has become such a common and ongoing practice, and there is generally little discussion about the advantages or drawbacks of fgm on girls. there is a misconception when fgm is associated with religious reasons. any religion, notably islam, never requires the fgm practices. there are no explicit or even implied norms in the quran that mandates fgm. based on the study of some researchers, it as a tradition is indivisible from the stigma about women in a patriarchal culture. to put it another way, the question about fgm in society should be addressed not merely as a question of religion or traditional customs but as part of a more significant attempt to perpetuate a patriarchal culture and gender bias in favor of men.36 the fgm legitimacy in indonesia is noticeable in several regulations, one of which is the minister of health regulation 1636/2010 issued by the health ministry, which became the legal grounds for fgm enforcement in indonesia. in this regulation, fgm is defined as scratching the skin that covers the front of the clitoris without hurting the clitoris itself.37 fgm in indonesia can only be performed by certain healthcare professionals, such as doctors, midwives, and nurses, who are licensed or permitted to practice, and preferably of the female gender.38 it can only be performed with the consent and request of the circumcised woman, her parents, and/or guardians.39 under this regulation, the act of injuring the female genitalia by healthcare professionals may be carried out in the name of ensuring the safety of the circumcised woman.40 this regulation gave permissibility to the fgm practices and has become a guideline for healthcare professionals to perform fgm.41 36 hemanto, supra note 27 at 270. 37 regulation of the minister of health no.1636/menkes/per/xi/2010. 38 ibid. 39 ibid. 40 komnas perempuan, supra note 19 at 2 41 komnas perempuan, supra note 4 at 76. 130 | female genital mutilation as violence against women: a narrative of promoting abandonment this moh regulation comes into existence as a result of pressure from the community. one of them is the fatwa of the indonesian ulema council (mui), which response to the circular letter of the directorgeneral of public health hk.00.07.1.3.1047/2006 on the prohibition of medicalization of female circumcision. then, the mui issued fatwa 9a/2008 on the prohibition of circumcision of women. the fatwa states that circumcision for both men and women is the nature and syiar of islam. female circumcision is a makrumah understood as one of the recommended forms of worship.42 this fatwa stresses that female circumcision is imperative in islam and must not be forbidden, and its prohibition is against islamic sharia.43 the government issued moh regulation 6/2014 that revoked minister of health regulation 1636/2010 on female circumcision. although its repeals moh regulation 1636/2010, fgm remains legal in indonesia under this regulation. article 2 mandates the health and syara’k advisory council to develop guidelines for female circumcision that safeguard the health and safety of circumcised women.44 however, the mandate of this article has remained unfulfilled until today. thus, the legality of fgm practices is still ambiguous in indonesia. this regulation shows an uncertain and hesitant stance of the government about the problem of fgm. the lack of a definite policy on the subject of fgm demonstrates that the government is not truly committed to tackling the problem.45 it resulted in the continuation of fgm practices in indonesia.46 42 fatwa on the law on the prohibition of female circumcision, sor/2008-9a. 43 medicalization of fgm in indonesia, by terres de femmes & watch indonesia (terres de femmes & watch indonesia). 44 regulation of the minister of health, supra note 37. 45 komnas perempuan, supra note 4 at 78. 46 ika, “praktik sunat perempuan masih banyak ditemukan di indonesia”, universitas gadjah mada, online: <https://ugm.ac.id/id/berita/18994-praktik-sunat-perempuanmasih-banyak-ditemukan-di-indonesia>. 131 | indonesian journal of law and society 2. egypt fgm is carried out in egypt for several religious and cultural reasons. according to some studies, it has been practiced on egyptian women and girls since pharaohs in ancient egypt. historical evidence suggests that it was first mentioned in the holy book of the torah, brought by moses.47 this tradition is believed to have been obeyed by the israelites in the past. fgm in egypt became known as a culture shared between egyptians and romans living in egypt. it was once thought to be a method of eradicating a woman's masculine aspect in order for her to marry. fgm practices in egypt are usually performed in may and june, just before summer starts. the form of fgm practices is carried out in the first and second types.48 fgm has been prevalent in egypt long before christianity and islam. even though it does not stem from islam and no norms are stating fgm in the quran, the community typically invokes one of the hadiths that justify fgm on women. it is performed because it safeguards women's honor and virginity, which are highly esteemed and revered in islam and are mandated in the quran.49 one of the reasons for fgm in egypt is that a social moral idea considers virginity to be the most treasured thing a woman has before she marries. additionally, the purpose of fgm in egypt is to reduce a woman's sexual urges, protecting them from sexual activity, thus maintaining their virginity. this idea causes women to be disadvantaged in preserving their honor and virginity because they have no say in their reproductive health choices. furthermore, the rationale behind fgm practices in egypt is to protect a family tradition predicated on the idea that women only become truly female after it has been performed on them, therefore removing their masculinity. following this idea, when a woman undergoes fgm, she assumes her full status as a woman and distinguishes the positions of women and men in marriage. 47 hemanto, supra note 27 at 265. 48 who, “prevalence of female genital cutting among egyptian girls” (2008) 86:4 bulletin of the world health organization at 270. 49 marie b assaad, “female circumcision in egypt: social implications, current research, and prospects for change” (1980) 11:1 studies in family planning at 5. 132 | female genital mutilation as violence against women: a narrative of promoting abandonment these are the factors that have contributed to egypt's persistent practice of fgm. although fgm in egypt continues, there are legislative products with a women's standpoint to assure the protection and rights of women in egypt. egyptian lawmakers regulate such practices because fgm discriminates and results in injustice against women.50 the first regulation concerning fgm practices in egypt was law 126/2008, amended by law 78/2016.51 law 78/2016 contains provisions prohibiting fgm. the punishment for fgm practices is more stringent than before.52 this regulation aimed to explicitly not accept it, promote its abandonment, and ban its conduct in egypt.53 the restriction against fgm may also be found in the child law 12/1996 as amended by law 126/2008, which prohibited fgm against minors.54 the government must protect children's rights in all situations or provide a safe, healthy, and clean environment for them. the state must take decisive action to prevent harmful practices against children's health. the law further prohibits guardians or caregivers of children from exposing children to illegal physical violence or dangerous practices purposefully.55 moreover, through ministerial decree regulation, the egyptian government bans fgm by medical practitioners by prohibiting nurses or doctors from cutting or modifying any part of the female genitalia, whether in public hospitals, private, or anywhere else. violations of these rules will be viewed as a breach of the medical code of ethics, with potential criminal consequences.56 the egyptian government's motivation for enacting this rule stems from many egyptian women who have died due to fgm. for that reason, the need for a legal basis for the protection of women's rights 50 unicef & unfpa, tackling fgm/cutting in egypt 2010 (egypt: unicef & unfpa, 2010). 51 george sadek, egypt: sexual violence again women, online: <https://www.loc.gov/ law/help/sexual-violence-against-women/egypt-sexual-violence-against-women.pdf> 52 thomson reuters foundation & 28 too many, egypt: the law and fgm (thomson reuters foundation & 28 too many, 2018). 53 unicef & unfpa, supra note 50. 54 law concerning child act, se 2008. 55 ibid. 56 thomson reuters foundation & 28 too many, supra note 52. 133 | indonesian journal of law and society arises. as a result of laws prohibiting fgm and the establishment of the national committee for eliminating fgm in 2019, awareness among egyptians on the dangers of fgm has risen, and more people are reporting illegal practices of fgm in the country.57 3. yemen fgm in yemen mainly falls into type ii under who's classification. approximately 83 percent of fgm in yemen is performed in this manner.58 in some parts of yemen, another practice known regionally as altakmeed (compression) is conducted on the female genitalia. it comes in different forms. in some communities, a compress is used on the genitalia on the fourth day following the birth of a girl. the compress is made out of soft cotton cloth with heated salt or sand within oil and herbs, which then is placed on the girl's genitalia, repeatedly pressing it for about an hour. then, this procedure is repeated for about 40 days and up to four months. this treatment is intended to reduce sexual excitement by damaging nerve endings in the female genitalia.59 in other places, different materials are used to produce the same effect. for example, a community in the almahra region of yemen rubs the clitoris of girls with a piece of onion to attain cleanliness.60 the demographic and health and health survey (dhs) conducted by the ministry of public health and population in 2013 found that 19% of all women aged 15 to 49 have had their genitalia circumcised in some way.61 57 un women, “as more families report fgm incidents in egypt, advocacy intensifies, and a new bill seeks to increase penalties”, online: <https://www. unwomen.org/en/news/stories/2021/2/feature--families-report-fgm-in-egypt-andadvocacy-intensifies>. 58 human rights watch, killing my daughter haunts me: fgm in yemen (united states of america: human rights watch, 2015). 59 husnia al-qaderi, “situation analysis on fgm/cutting (fgm) in yemen,” (2008) at 4. 60 human rights watch, supra note 58. 61 yemen ministry of public health & population & central statistical organization, national health and demographic survey 2013,( preliminary report) (yemen: yemen ministry of public health & population & central statistical organization,2013) at 28. 134 | female genital mutilation as violence against women: a narrative of promoting abandonment the prevalence of practice varies depending on the woman's level of education, suggesting that it may also be attributed to her parents' socioeconomic status. a survey found that over 22% of women with no education, 18% of women with primary education, and 11% of women with a secondary or higher education said they had been circumcised. victims also said their fathers had little or no education, while their mothers had only primary school education. surveys have also shown a trend of fgm becoming less prevalent among younger women. according to the 2013 dhs, less than 17% of women aged 15 to 29 were mutilated, relative to 21 to 23% of women aged 30 and older. as per a unicef survey from 2012, 19 percent of women under 20 are circumcised, whereas 23 to 25 percent of women aged 20 and beyond are circumcised.62 it is mainly driven by the idea that fgm is a religious responsibility and improves cleanliness. although many families who circumcise their daughters claim a religious motive for the practice, government officials believe its true purpose is to repress girls' sexual desires.63 in yemen, the roots of fgm stem from the shafi'i school (maddhab) within islam. meanwhile, other schools such as hanafi or maliki do not practice fgm at all. imams from the shafi'i school push the fgm agenda in their sermons, referring to it as necessary.64 according to a survey held by the yemeni government in 2003, only 32% of yemeni women said that fgm should continue. the research discovered tendencies based on the respondent's level of education and location where uneducated women were more supportive of fgm than educated women, and rural women were more supportive of fgm than urban women.65 68% of the women who rejected the practice stated it was a harmful tradition, and 41% stated it was against islam.66 studies also found 62 human rights watch, supra note 58. 63 ibid. 64 ibid. 65 ibid. 66 ibid. 135 | indonesian journal of law and society a decline in fgm over the last decade. the number of support towards the practice also sees a drop in the people of yemen.67 concerning the legitimacy of fgm, there is presently no legal framework that expressly criminalizes and sanctions fgm in yemen.68 however, various efforts have been made by the yemeni government to bring an end to the practice. the ministry of public health, for example, issued a ministerial decree prohibiting fgm treatments in government and private healthcare facilities in 2001. however, the decree did not impose punishments for noncompliance. the decree itself has difficulties in practice due to the difficulty of monitoring in healthcare facilities.69 to stop fgm practices, the health ministry introduced a bill to the yemeni parliament that aimed to protect women's health, including provisions that would ban "surgical procedures on a woman's genitalia” unless necessary for medical reasons. members of parliament opposed the bill, claiming it was against sharia law, which authorizes fgm. unfortunately, the bill passed in the parliament but without the provision to ban fgm in yemen.70 iv. addressing the fgm issues a. the issues within fgm the lack of assertiveness of the government against fgm creates ambiguity in some elements of society. regulation of the minister of health 6/2014 is an ambiguous attitude of the government because it only states to revoke the previous regulation, allowing health personnel to practice fgm. however, it did not clearly state the prohibition against fgm. instead, it gave a mandate to the health and syara'k advisory council to make guidelines for implementing the 'safe' practice of fgm. only a few healthcare training schools have included extensive knowledge regarding fgm in their curricula. for example, the university of sydney in 67 ibid. 68 fgm in yemen: short report, by 28 too many (28 too many, 2020). 69 human rights watch, supra note 58. 70 ibid. 136 | female genital mutilation as violence against women: a narrative of promoting abandonment australia evaluated the findings of 18 studies as part of their evaluation of fgm.71 while in the uk, the british medical association (bma) published its first comprehensive fgm guidelines in 2011.72 in some countries, healthcare providers claim a lack of information about fgm and why it should be prohibited and technical understanding about caring for girls and women who have had fgm problems.73 with greater awareness of the adverse effects of fgm and greater healthcare access these days, there are attempts to medicalize fgm, having the operation performed by healthcare workers in clinical settings with the assumption that it is entirely safe.74 these campaigners of fgm medicalization claim that it will help decrease the procedure's risks, limit the extent of mutilation, and lessen the pain affiliated with it. another common claim is that medicalization is the first process toward the abolishment of the practice. also, because the healthcare industry has had limited participation in the preventive measures of fgm in women in the number of places where fgm is performed, structured coordination between prominent stakeholders at the national, grassroots, and health sectors should work nicely. b. recommendations to promote the fgm abandonment healthcare must not perform any form of fgm in any situation, and neither they perform infibulation upon delivery or in any circumstance. they must provide medical treatment for girls and women experiencing fgm complications, including proper care during pregnancy and birth for 71 university of sydney, “health professionals lack knowledge about fgm”, online: <https://www.sydney.edu.au/news-opinion/news/2016/03/18/health-professionalslack-knowledge-about-female-genital-mutilat0.html>. 72 female genital mutilation: caring for patients and safeguarding children, by british medical association, bma 51999/ab/ethics/july 2011 (british medical association, 2011). 73 global strategy to stop healthcare providers from performing female genital mutilation, by world health organization, who/rhr/10.9 (world health organization, 2010) at 10. 74 who, policy guidelines for nurses and midwives who/fch/gwh/01.5 (geneva: world health organization, 2001). 137 | indonesian journal of law and society women who have previously undergone fgm. they should educate women who may have endured the effects of fgm, along with their families, and inform them to receive treatment for their problems and mental health consequences, to prevent infibulation, and to reject having fgm performed on their daughters or other family members. healthcare providers must also act as community activists for the practice's elimination. healthcare providers need to use their competence and authority to promote girls' and women's health and human rights, notably their rights to information, personal rights, freedom from violence, and health.75 fgm-performed healthcare providers are hardly brought to the notice of the higher authorities for professional disciplinary and/or legal action.76 while legal actions alone commonly result in secret operations or initial disobedience, a legal framework for women's and girls' human rights is essential. when applied in combination with community-based work, a framework that incorporates preventive efforts to promote abandonment and punitive actions for those who partake in practice has been found to have a better impact. the government should develop strategies and formulate specific plans of action based on particular circumstances through a collaborative process that involves all stakeholders. unicef has the specific strategy for the elimination of fgm includes the following six pillars. the first is developing and implementing policies and legislation that protect the rights of girls and women.77 the second is to increase girls’ agency and assets and build their leadership skills to influence social change. the third is to shift discriminatory social and gender norms through community-led mobilization. the fourth is to strengthen child protection systems to ensure access to essential services. the fifth is to build a robust evidence base. the sixth is the humanitarian-development nexus: a cross-cutting approach to fgm elimination. 75 ibid. 76 ibid. 77 unicef, a decade of action to achieve gender equality: the unicef approach to the elimination of fgm, unicef/uni308798/tadesse (unicef, 2020). 138 | female genital mutilation as violence against women: a narrative of promoting abandonment out of the countries that practiced fgm, as mentioned before, egypt has succeeded in its multi-layered strategy to eliminate fgm in the country. the egyptian cabinet recently approved the draft law submitted by the national committee for the eradication of fgm by amending some provisions of the penal code issued by law 58/1937 to decide a deterrent punishment for those who practice fgm.78 c. legal theories on social regulation legal theories of social control are frequently described as belonging to one of two ideologies: law and economics and law and society. both study the relation between informal local social control and the formal legal system controlling human behavior but vary in the primacy given each one.79 the law and economics movement argues that the state essentially achieves social control through the legal system and that governments are the primary providers of regulations and enforcement tools.80 the law and economics movement emphasizes the significance of incentives and their power to influence behaviors. it implies that people are logical and forward-thinking and will adjust their behaviors in the face of legal incentives. an anticipated utility calculation determines whether or not a person performs an unlawful behavior. therefore, based on the law and economics perspective to fgm predictions, it may be expected that the law forbidding fgm is valid and enforceable. also, if we consider the costs and advantages of the practice, legal sanctions may play a role in the equation in a powerful way. for some, the prospect of increased financial expenses motivates their choice to end fgm. egypt used this study by 78 egyp today staff, “what you need to know about egypt’s efforts to eradicate fgm”, egypt today (5 february 2021), online: <https://www.egypttoday.com/ article/6/98252/what-you-need-to-know-about-egypt%e2%80%99s-efforts-toeradicate>. 79 irving m zeitlin, “max weber’s sociology of law” (1985) 35:2 the university of toronto law journal at 183–214. 80 posner r a, economic analysis of law, 6th ed (new york: aspen publishers, 2003). at 31. 139 | indonesian journal of law and society imposing a law that focuses on deciding a deterrent punishment for those who practice it in the hope of permanently ending the practice. meanwhile, law and society academics argue that the fear of criminal prosecution has a limited influence in some cases. they stress that regulations enforced at the local level frequently contradict formal regulations but adhere to commonly held beliefs about proper behaviors and practices. social group's influence can be significant as there are significant social penalties, such as withholding or awarding signs of status and respect or restricting access to material resources.81 thus, the law and society movement believe that both law and social norms influence behaviors but that substantive norms frequently complement, and at times overrule, formal laws.82 in terms of fgm, individuals may have limited issues about the enforceability of the legislation prohibiting it due to a lack of understanding of the legal requirement. furthermore, the legislation prohibiting fgm may not drive the procedure's elimination but rather may encourage the practice's illegal practice. v. conclusion fgm is a form of violence against women that endangers and robs women of their rights. in contrast, it is still carried out by considering traditions and social norms to ensure that women can be accepted into society and married and uphold the family's status and honor. it has been practiced for a long time due to a strong history of community cultural values in indonesia, egypt, and yemen. in indonesia, the government never clearly states the prohibition against fgm. the 'void' of the regulation regarding fgm in indonesia reflects an ambiguous attitude of the government since the moh regulation 6/2014 only states to revoke the previous regulation, which allowed healthcare providers to practice fgm. while in egypt, the cabinet recently approved a draft law submitted by the national committee to eradicate fgm to impose harsher penalties for those 81 ibid. 82 bettina shell-duncan, et al., “legislating change? responses to criminalizing female genital cutting in senegal” (2013) 47:4 law & society review at 57-71. 140 | female genital mutilation as violence against women: a narrative of promoting abandonment practicing fgm. compared to previous countries, the yemen parliament passed a bill that would ban fgm without banning fgm in the country. even before the bill passed, the members of the yemeni parliament opposed the bill claiming it was against sharia law which authorizes fgm in yemen. therefore, the government should also establish a proper legislative and educational framework and correlating national guidelines and policies to guide the work of all types of healthcare providers, such as reporting and monitoring routines. it should also provide the necessary budget to prevent the medicalization of fgm inside the overall framework of complete abolition of the practice. also, the government should guarantee that healthcare providers receive extensive training and learn the essential knowledge and abilities to care for girls and women suffering from fgm complications and enhance their capacity to campaign for the practice's elimination. acknowledgments none. references a, posner r, economic analysis of law, 6th ed (new york: aspen publishers, 2003). annisa, rifka, tindak pidana kekerasan terhadap perempuan dan anak (yogyakarta: rifka annisa women’s crisis centre, 2006). assaad, marie b, “female circumcision in egypt: social implications, current research, and prospects for change” (1980) 11:1 stud fam plann. british medical association, female genital mutilation: caring for patients and safeguarding children, by british medical association, bma 51999 /ab/ethics/july 2011 (british medical association, 2011). egyp today staff, “what you need to know about egypt’s efforts to eradicate fgm”, egypt today (5 february 2021), online: <https:// 141 | indonesian journal of law and society www.egypttoday.com/article/6/98252/what-you-need-to-knowabout-egypt%e2%80%99s-efforts-to-eradicate>. erwanti, marlianda o, “kajian yuridis fgm (fgm) dalam perspektif hak asasi manusia (studi terhadap praktik fgm di indonesia)” (2012) 1:4 diponegoro law rev. farid, muhammad r a, “kekerasan terhadap perempuan dalam ketimpangan relasi kuasa: studi kasus di rifka annisa women’s crisis center” (2019) 14:2 j studi gend. farida, jauharotul, et al., "sunat pada anak perempuan (khifadz) dan perlindungan anak perempuan di indonesia: studi kasus di kabupaten demak" (2017) 12:1 sawwa. hemanto, agus, “khitan perempuan antara tradisi dan syari’ah” (2016) 10:1 kalam j studi agama dan pemikir islam. hodijah, siti n, et al., persimpangan antara tradisi dan modernitas hasil kajian kualitatif praktik pemotongan/pelukaan genitalia perempuan (p2gp) di 10 provinsi 17 kabupaten/kota, by siti n hodijah et al (komnas perempuan, 2018). human rights watch, killing my daughter haunts me: fgm in yemen, by human rights watch (united states of america: human rights watch, 2015). ika, “praktik sunat perempuan masih banyak ditemukan di indonesia”, univ gadjah mada (february 2020), online: <https://ugm.ac.id/id/ berita/18994-praktik-sunat-perempuan-masih-banyak-ditemukan-diindonesia>. irianto, sulistyowati, perempuan & hukum : menuju hukum yang berperspektif kesetaraan dan keadilan (jakarta: yayasan obor indonesia, 2006). komnas perempuan, kertas konsep pencegahan dan penghapusan pemotongan/pelukaan genitalia perempuan (p2gp) (jakarta: komnas perempuan, 2019). 142 | female genital mutilation as violence against women: a narrative of promoting abandonment putranti, basilica d, “sunat perempuan: cerminan bangunan sosial seksualitas masyarakat yogyakarta dan madura” (2005) 16:1 populasi. putranti, basilica d, “to islamize, becoming a real woman or commercialized practices? questioning female genital cutting in indonesia” (2008) 3:2 finn j ethn migr. shell-duncan, bettina, et al., "legislating change? responses to criminalizing female genital cutting in senegal" (2013) 47:4 law soc rev. terres de femmes & watch indonesia, medicalization of fgm in indonesia (terres de femmes & watch indonesia). thomson reuters foundation & 28 too many, egypt: the law and fgm (thomson reuters foundation & 28 too many, 2018). university of sydney, “health professionals lack knowledge about fgm”, online: <https://www.sydney.edu.au/news-opinion/news/ 2016/03/18/health-professionals-lack-knowledge-about-femalegenital-mutilat0.html>. un women, “as more families report fgm incidents in egypt, advocacy intensifies, and a new bill seeks to increase penalties”, un women (5 february 2021), online: <https://www.unwomen.org/en/news/stories/ 2021/2/feature--families-report-fgm-in-egypt-and-advocacyintensifies>. unicef, a decade of action to achieve gender equality: the unicef approach to the elimination of fgm, unicef/ uni308798/tadesse (unicef, 2020). unicef, statistical profile on female genital mutilation/cutting (new york: unicef, 2016). unicef & unfpa, tackling fgm/cutting in egypt 2010 (egypt: unicef & unfpa, 2010). who, “prevalence of female genital cutting among egyptian girls” (2008) 86:4 bull world health organ. 143 | indonesian journal of law and society who, understanding and addressing violence against women: female genital mutilation, by who (world health organization, 2012). who, eliminating fgm: an interagency statement onhchr, unaids, undp, uneca, unesco, unfpa, unhcr, unicef, unifem, who (geneva: world health organizaton, 2008). who, global strategy to stop healthcare providers from performing female genital mutilation, who/rhr/10.9 (world health organization, 2010). who, policy guidelines for nurses and midwives, who/fch/gwh/ 01.5 (geneva: world health organization, 2001). zeitlin, irving m, “max weber’s sociology of law” (1985) 35:2 univ tor law j. 28 too many, fgm in yemen: short report (28 too many, 2020). 144 | female genital mutilation as violence against women: a narrative of promoting abandonment this page intentionally left blank microsoft word 26752.doc indonesian journal of law and society (2022) 3:1 1-24 issn 2722-4074 | https://doi.org/10.19184/ijls.v3i1.26752 published by the university of jember, indonesia available online 19 march 2022 _____________________________ * corresponding author’s e-mail: nilnahamida@gmail.com adat law and legal pluralism in indonesia: toward a new perspective? nilna aliyan hamida* university of jember, indonesia abstract: adat law is part of indonesia's legal system with unwritten characteristics. to some extent, it embeds with religious values. as a country with pluralist societies, adat law plays an important role in indonesia that increasingly adds the critical discourse of legal pluralism since it originates from indigenous values based on habits to execute from the older generation. this study aimed to analyze the contextual development of adat law in indonesia through a historical perspective and its applicability to its emerging positivization in the form of state law. it emphasized the recent development of transforming adat law into state regulation through by-laws with the following prospects and challenges. this study used socio-legal method research, a cross-disciplinary approach in nature through the form of analysis to the normative and contextual issues of adat law. this paper concluded that constituting the state regulation contains the boundaries to implement adat law as the right of adat community, adat court, and the adoption of the adat values. the positivization has developed by adopting adat law to bylaws at the regional level of governments. by-law is assumed to have law enforcement that binds the community because it comes from the habits of the community. therefore, it indicates a new paradigm in recognizing and protecting adat law, not through by-laws, in which both adat and state laws are different and could not be a unity law. keywords: adat law, state law, legal pluralism, indonesian law. copyright © 2022 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 29/08/2021 reviewed: 26/12/2021 revised: 17/03/2022 accepted: 19/03/2022 how to cite: hamida, nilna aliyan, “adat law and legal pluralism in indonesia: toward a new perspective?” (2022) 3:1 indonesian journal of law and society 1-24, online: <https://doi.org/ 10.19184/ijls.v3i1.26752>. 2 | adat law and legal pluralism in indonesia: toward a new perspective? i. introduction legal pluralism has a long historical pedigree and varied from community dispute resolution to the international system. while it is regarded as the traditional system, it remains embedded with the creation of the modern state. hitherto, legal pluralism has shaped interactions between different societies in parts of africa, asia, latin america, and the pacific which have similar issues of pluralistic societies.1 indonesia is a country with various legal forms and values in developing its legal system due to its pluralist and divided societies. in doing so, adat law plays an important role in indonesia. it increasingly adds the critical discourse of legal pluralism since it originates from indigenous values based on habits to execute from the older generation.2 consequently, adat law applies in a various customary law community.3 for instance, in some regions of indonesia, adat law remains to govern customary marriage, its procedures or ceremonies, with the following the termination of customary marriage.4 the traditional values that develop in the community are honored as an entirely usable law. indeed, while people society violates the law, they get sanctions in the form of moral sanctions.5 adat law is an inheritance to be guarded and preserved and provides binding obligations to obey the law. even though adat law is an unwritten law, it binds powers as part of the indonesian legal system 1 geoffrey swenson, “legal pluralism in theory and practice” (2018) 20:3 international studies review 438–462 at 441. 2 gary f bell, "multiculturalism in law is legal pluralism—lessons from indonesia, singapore, and canada" (2006) singapore journal of legal studies at 316. 3 muhamad jefri ananta, dominikus rato & i wayan yasa, “perceraian dan akibat hukumnya terhadap anak dan harta bersama menurut hukum adat osing di desa aliyan, kecamatan rogojampi, kabupaten banyuwangi” (2017) 4:3 lentera hukum 221–236 at 230. 4 dhelima putri laksana, dominikus rato & emi zulaikha, “the cost of panai’ as the marriage requirement for the migrant bugis tribe under adat law” (2020) 1:1 indonesian journal of law and society 57–74 at 61. 5 franz von benda-beckmann & keebet von benda-beckmann, “myths and stereotypes about adat law: a reassessment of van vollenhoven in the light of current struggles over adat law in indonesia” (2011) 167:2–3 bijdragen tot de taal-, landen volkenkunde / journal of the humanities and social sciences of southeast asia 167–195 at 171. 3 | indonesian journal of law and society and influences the development of positive law.6 sanctions for violations of adat law can provide moral effects with its relationship to societies. thus, it becomes a strong reason to argue that adat law is more obeyed and socially binds than positive law. historically, adat law had emerged before indonesia gained independence. it has gradually developed with the influence of the indigenous people's interactions and traditions. besides, the primary excuse is that adat law remains in indonesia because of the integralists' values in the community. the indigenous values implement the law to represent the soul of the society by referring to savigny's volkgeist model.7 while the sole source of all laws that come directly from adat is evidence of its existence, the diversity of legal forms emerged from the general belief of the society, as feeling and inner need and not evolve based on deliberate natural reflection or reasoned considerations.8 forming the relationships between people and values makes society more comfortable to achieve the aims of the law. hence, adat law becomes the anticipation of chaotic situations based on their customs related to social conditions.9 in specific circumstances, the law was considered a feared ruler that the aim of the law could not achieve as a preventive aim. the expansion of adat law has led to various regulations depending on the values and traditions.10 it has begun in the pre-hindu era by covering a broad concept through cultural and religious acculturation.11 postulation is 6 jeroen adam, “forced migration, adat, and a purified present in ambon, indonesia” (2008) 47:4 ethnology: international journal of cultural and social anthropology at 231. 7 andreas rahmatian, “friedrich carl von savigny’s beruf and volksgeistlehre” (2007) 28:1 the journal of legal history 1–29 at 8. 8 luis kutner, “legal philosophers: savigny : german lawgiver" (1972) 5:22 marquette law review at 285–286. 9 najmu laila sopian, “informal dispute resolution based on adat law: a case study of land dispute in flores east nusa tenggara, indonesia” (2015) 5:2 indonesia law review 106-122–122 at 107. 10 laurens bakker & sandra moniaga, "the space between land claims and the law in indonesia" (2010) 38:2 asian journal of social science 187–203 at 188–189. 11 ridwan ridwan, khudzaifah dimyati & aidul fitriciada azhari, “perkembangan dan eksistensi hukum adat: dari sintesis, transplantasi, integrasi hingga konservasi” (2017) 6:2 jurnal jurisprudence 106 at 109. 4 | adat law and legal pluralism in indonesia: toward a new perspective? the historical legacy that has been used since the past to resolve disputes. in bali, the adat village is a community of adat society whose hereditary traditions and manners generations are in the bonds of kahyangan desa that has an area of their property and has the right to manage the household. existing adat law in bali on agreement contained in awig-awig and pararem, where the sanctions are in the form of reprimands and warnings for who commits a crime.12 the legacy influences the community to solve problems based on values. the definition between custom and adat law should be different.13 custom is a habit, whereas adat law is a rule based on the custom. it facilitates establishing legal provisions for the community.14 in 1927, the dutch east indies government had planned to codify adat law for indigenous people as their regulation.15 the codification is systematically exposed to document adat laws from one locality to the others to advance the law and assist judges who must adjudicate according to indonesian native law. the proposal to codify adat law recently re-emerged, mainly when adat values were more abandoned, while rights recognition was restricted.16 the rights protection of the indigenous people by adopting adat law into state law will eliminate adat values.17 it asserts that the way to protect the right by codification and transforming adat law into state law will offer two impacts on adat law. the positive impact is protecting and recognizing the 12 dewa ayu agung intan pinatih & malik akbar mulki rahman, “awig-awig and legal awareness of community: how does customary law provide security for local people and aliens?” (2020) 2:4 the indonesian journal of international clinical legal education 491–502 at 493–494. 13 bakker & moniaga, "the space between," supra note 7 at 188–189. 14 yantje liauw, et al., "adat law in designing of land law system" (2015) 8 at 43. 15 bono budi priambodo, "positioning adat law in indonesia's legal system: historical discourse and current development on customary law" (2018) 02 udayana journal of law and culture 25 at 146. 16 komnas ham, “masyarakat hukum adat wajib dilindungi dalam peraturan perundang-undangan”, (5 august 2021), online: <https://www.komnasham.go.id/ index.php/news/2021/8/5/1861/masyarakat-hukum-adat-wajib-dilindungi-dalamperaturan-perundang-undangan.html>. 17 jacqueline vel, yando zakaria & adriaan bedner, “law-making as a strategy for change: indonesia’s new village law” (2017) 4:2 asian journal of law and society 447–471 at 4. 5 | indonesian journal of law and society adat community's rights. the negative effect is that values of the law are not as sacral as unofficial law. the regulation of adat law executes in the form of peraturan daerah (by-laws) that believe suitable to protect adat law.18 in this context, adat law will emerge the aims of the law because there is a relation between the law and society. however, the faith strengths and the integralist values contradict the state law values. this study aimed to analyze the contextual development of adat law in indonesia through a historical perspective and its applicability to its emerging positivization in the form of state law. it emphasizes the recent development of transforming adat law into state regulation through by-laws with the following prospects and challenges. according to this background, this study has three main discussions. the first part of the discussion enquires the characteristics of adat law and the relation between law and society, especially the regulation to protect human rights using a historical perspective. the second part explores the idea of transforming adat law into state law to be considered in indonesia's legal reforms. the last part examines the accuracy of the concept of legal pluralism in indonesia by reconstructing adat law in the indonesian legal system due to the religiouscommunalistic background of adat law. ii. methods this study used the socio-legal method as it probed a normative framework and social customs following the application of adat law in indonesia. in particular, it is a cross-disciplinary approach in nature through the form of analysis to the normative and contextual issues of adat law; between legal studies, history, and sociology. the research dealt with the decisionmaking process of the state administration system in the transformation of adat law into state law as a general rule. the data was collected from books, journal articles, doctrines, and news related to the transformation of adat law into state law in indonesia. 18 andy omara, “does the current regional autonomy support legal pluralism in indonesia?” 10 at 427. 6 | adat law and legal pluralism in indonesia: toward a new perspective? iii. the characteristics of adat law in indonesia: a historical overview legal pluralism is a reality in developing to follow social changes in society.19 one of legal pluralism is originated from the living law concept as proposed by eugene ehrlich.20 living law refers to the rules that do not begin from state authority but exist with state law. pluralism is relevant to indonesia because of the various religions, cultures, tribes, and customs.21 furthermore, indonesia's diversity is the mindset and behavior that rely on social function as interactive relations to influence each other. legal pluralism in indonesia has occurred since the netherland's east indies rule with a discussion of islamic law and adat law to determine the appropriate for the society.22 hurgronje and vollenhoven pioneered the receptie theory that adat law has a higher position than religious law.23 even though the opinion is contrary to the concept of islamic law and cannot be applied, it aims to show how adat cultures are not contaminating with modern ideas. there is controversy because it separates religion and politics, but the goal is how adat values are respected and used by the community itself. with the legal pluralism concept, indonesia has applied adat law, islamic law, and state law (positive law) in the indonesian legal system to solve complex problems.24 soepomo defines adat law as unwritten legislative regulations that include living regulations. although it is unwritten or 19 gerhard anders, “law at its limits: interdisciplinarity between law and anthropology” (2015) 47:3 the journal of legal pluralism and unofficial law 411– 422 at 417. 20 diah pawestri maharani, “‘a-logical’ chacarcter of indonesian adat law based on paul scholten’s perspective” 13 at 5. 21 daniel huizenga, “articulations of aboriginal title, indigenous rights, and living customary law in south africa” (2018) 27:1 social & legal studies 3–24 at 15. 22 keebet von benda-beckmann, “anachronism, agency, and the contextualisation of adat: van vollenhoven’s analyses in light of struggles over resources” (2019) 20:5 the asia pacific journal of anthropology 397–415 at 401. 23 léon buskens & baudouin dupret, “the invention of islamic law: a history of western studies of islamic normativity and their spread in the orient” in after orientalism: critical perspectives on western agency and eastern re-appropriations (brill) (2015) at 4. 24 yusar yusar, “the youth, the sciences students, and religious radicalism” (2016) 16:2 al-ulum 330 at 343. 7 | indonesian journal of law and society uncodified, the law is respected and supported by the community based on the belief in the power of law.25 the adat law and islamic law are developing in a specific community and not intended for all people as state law. the development of adat law determines by legal paradigm, legal politics, and the relation between the law and the community.26 adat law is a unique law because of unwritten law, so the source is only from the custom of the people. law and the community have a crucial role in how adat law is still implemented and obeyed by the community. a good relationship will form an objective and alternative law to the societal problems and contrary if the law gives inconvenience for reasons of regularity will direct the law to be abandoned because it is no longer relevant. on the other hand, the law is regarded as the soul of people and part of legal science. savigny classifies the law into two viewpoints; natural law is the law of life, grows and develops in society as adat law, and state law is the law with technical character and control by the government.27 the original law is adat law that lives in the community and always continues investigating and updating to be appropriate to society.28 the power of law grows in a society that comes from the complexity of individuals and associations. it has a spiritual bond and becomes a unity of nation and soul. even though adat law is uncodified, it has a solid binding in society. society gives specific sanctions for those who violate the adat law focusing on moral sanction.29 the adat law arises in a community in a small scope 25 bono budi priambodo, "positioning adat law in indonesia's legal system: historical discourse and current development on customary law" (2018) 02 udayana journal of law and culture 25 at 147. 26 sarip sarip & diana fitriana, “legal antropology approach on the application of village website in digital economic era in indonesia” (2018) 5:2 unifikasi : jurnal ilmu hukum 96 at 101. 27 olga maratovna belyaeva, “on the system of german law in f.c von savigny’s doctrine” (2017) 10 6 at 1730–1732. 28 ibid at 1731. 29 herman hidayat, et al., "forests, law and customary rights in indonesia: implications of a decision of the indonesian constitutional court in 2012: forests, law and customary rights in indonesia" (2018) 59:3 asia pacific viewpoint 293–308 at 297. 8 | adat law and legal pluralism in indonesia: toward a new perspective? with family and individuality concept adheres to community rules.30 it is a communal character that puts the people's interests in advance of individuals. it differs from western law that separates an individual's interest from the community. even though western law respects individuals and society, it more focusing on individual interests.31 despite achieving harmony between individuals and society, western law with individualism focuses on individual interests, while public interest will consider violations in the community.32 in adat law context, the main aim of the communal values achieving harmony between individuals and society.33 every law has its viewpoints that cannot be generalized. the adat law interprets as the original law of the indonesian community arising in customs and culture that indicates legal principle to binding and determining indonesian paradigm.34 the paradigm is the impact of habits that will influence the relationships between society and the environment that create the conformity between behavior and laws. adat community thought that life originated from cultural values with identical religious magic. it is bonding between society and nature with other creatures.35 humans and nature become a unity that needs harmony, balance, and continuity to connect with the adat law. adat community has rights and obligations both individually and socially. the recognition realized in article 18b(2) of the 1945 constitution regarding adat law and traditional rights community. it should comply with the principles of the unitary state of the republic of indonesia. article 28i(3) of the 1945 constitution state the adat community's cultural identity and traditional 30 rini astuti & andrew mcgregor, “indigenous land claims or green grabs? inclusions and exclusions within forest carbon politics in indonesia” (2017) 44:2 the journal of peasant studies 445–466 at 16. 31 taufik siregar, “adoption of ethnic customary system (adat) in modern confliction resolution” (2018) 8: sept turkish online journal of design art and communication 971–977. 32 mark van hoecke & mark warrington, “legal cultures, legal paradigms and legal doctrine: towards a new model for comparative law” (1998) 47:3 international and comparative law quarterly 495–536 at 10–11. 33 george frans wanma et al., "the existence of adat law community in indonesian legal regulations" (2015) 7 at 127. 34 anders, "law at its limits," supra note 16 at 416. 35 liauw et al, supra note 14 at 41. 9 | indonesian journal of law and society rights, respecting according to current civilizations. this article guarantees recognition and respect for the adat law community and its rights. the right of the adat community is vulnerable to extinction because of the diversity and uncodified law. the rights are outlined in the basic regulations of agrarian principles law (bal) 5/1960.36 the consideration to ensure the adat law was protected the communal rights optimally using natural resources for social interest.37 it can be diverted through the individual orientation to marginalize people's prosperity. bal can not guarantee that rights are protected, whether the implementation of regulations is not comprehensive or the content of the law is not filling the community rights.38 bal is one of the guarantees that adat law still exists to give positive impacts as a law. bal emphasizes indonesian agrarian law as the adat law that is still in line with the interests of the nation and country and the state law in indonesia. the substance controlling ulayat land by adat communities must be following the mandate of article 33 of the 1945 constitution that addresses the state control of natural resources for the greatest prosperity of the people.39 the policymakers should have the same interpretation of this provision. so, people who have been protecting and maintaining adat rights from generation to generation can become a priority.40 the relationship between the indigenous community and ulayat land does not limit. that land is a place to start life, survive, and have magical religious relations. this relationship illustrates that humans came from the land and will return to the earth. therefore, the land is sacred and considered sacred in 36 datu napoh, “recognition of the customary land law in the constitution of indonesia and malaysia” (2015) 2:2 brawijaya law journal 1–19 at 17. 37 brigitta hauser-schäublin, “adat and indigeneity in indonesia: culture and entitlements between heteronomy and self-ascription</i>” (2014) 29:3 journal of social issues in southeast asia 769 at 7. 38 ibid at 125–127. 39 simon butt, “traditional aditional land rights before the indonesian constitutional court” 21 at 59. 40 david henley & jamie s davidson, “in the name of adat : regional perspectives on reform, tradition, and democracy in indonesia” (2008) 42:4 modern asian studies 815–852 at 817. 10 | adat law and legal pluralism in indonesia: toward a new perspective? the life of the adat community.41 bal will guarantee that adat law is an alternative to state law. bal has provided many benefits and protections for the adat community. even though the implementation requires optimal appreciation, bal has guided to solve many disputes in the community.42 presently, there is a development of by-laws with the substance of adat law, which raises a contrary about the rules.43 the adat law refers to specific customs of a society that have different implementations as state laws because of the contradiction between the values and characters required to protect adat law through interpreting the adat law as the integralist and sacred values.44 the evidence adat law sources from the behavior that actualizes the habits and rules developed in the adat areas. naturally, the theory and implementation in each region are different, so by-law is the form to adopt the values of adat law with the boundaries that adat law cannot transform into state law. iv. adat law and state law in indonesia: an approach to legal reforms good law is the law that can adjust the development and community interest. in the democratic era, adat law contributes to the many principles of state law. the policymaker considers the good regulation for indonesia sourced from the integralist values.45 a fact can lead to the authoritarian of the government based on short-term political interests. there is no guarantee that policymakers will make rules that are always fair to many people, such as the bal created during the guided democracy with an 41 i nyoman nurjaya, “pengakuan hukum dan konstitusi terhadap komunitas adat dalam negara multikultural indonesia : apakah pengakuan sejati atau purapura?” (2014) 14 at 417. 42 henley & davidson, “in the name of adat," supra note 37 at 841. 43 nurjaya, supra note 41 at 419–420. 44 ibid at 419. 45 birgit bräuchler, “the revival dilemma: reflections on human rights, selfdetermination and legal pluralism in eastern indonesia” (2010) 42:62 the journal of legal pluralism and unofficial law 1–42 at 3. 11 | indonesian journal of law and society authoritarian government system.46 there was a relation between legal relevance and the power of policymakers where legal reform will occur if there is influence from the government. in the democratic era, many laws are born with an integralist background to direct authority regulations.47 the regulations propose transforming adat law into state law moreover to protect adat law also can be used as a tool of political power. having many laws encourages indonesia to become an adherent of legal pluralism. the law presents the distribution process to create a direction of the discipline and becomes the framework for creating a productive society. the law works to create a developing people following the values of the archipelago. legal pluralism refers to the various rules that exist and is adhered to as a source of law.48 legal pluralism in indonesia is not contributing with tools to determine the best laws used in resolving a particular case, which shows indonesia tends to have a weak legal pluralism. several laws have not functioned as effective legal settlements instead of creating confusion of the application. therefore, the reason for transforming adat law into state law, except to protect the rights of the adat community, also minimize legal confusion that occurs in indonesia. on the other hand, weak legal pluralism occurs when the state recognizes the other elements of legal systems outside of state law.49 however, these non-state legal systems are obedient to enforcement under state law. meanwhile, strong legal pluralism exists when the state recognizes the existence of non-state law and the legal system has the same enforcement capacity as state law.50 it indicates that creating adat law under the state law 46 ardiansyah, lalu sabardi & widodo dwi putro, “national law relations with customary law in the establishing of regulation of the recognition of indigenous peoples rights to the land of ulaya” ijmmu at 429. 47 muhammad bahrul ulum & nilna aliyan hamida, “revisiting liberal democracy and asian values in contemporary indonesia” (2018) 4:1 constitutional review 111–130 at 124–125. 48 hauser-schäublin, 2014b, at 11–12 49 keebet von benda-beckmann & bertram turner, “legal pluralism, social theory, and the state” (2018) 50:03 the journal of legal pluralism and unofficial law at 263. 50 brian z tamanaha, “understanding legal pluralism: past to present, local to global” (2008) 30 sydney law review at 382. 12 | adat law and legal pluralism in indonesia: toward a new perspective? will tend to weak legal pluralism. therefore, the adat law cannot be forced as state law due to several values, not in line with state law, such as religious values and customs, so how to make adat law have an equal position to be recognized and used as law. the law aims to regulate, maintain, and provide solutions to every community. in its development, adat law has raised to the state law. the evidence is that many regions that created adat law as a regional regulation (by-laws) indicate the position of adat law changed, mainly the impact on the community's obedience to the law.51 the aim to transform adat law into state law is the recognition as written law because the binding power of state law is more complex than adat law.52 it is proven that codification makes more understanding because the law is socialized to the people to make applied generally. transforming the adat law into state law will implement good regulation because people obey it based on their customs. adat law is considered more relevant in the updates of indonesian law when it originates from traditional values that the social relation is close.53 in addition, transformation aims to achieve maximum legal purposes by providing legal benefits for the community. a new concept appears that westerners deny the oral and unwritten law as traditions of the indigenous people but recognize the adat law in indonesia.54 they are equipped to recognize these laws, exposed and codified, and explained using western concepts practiced by dutch scholars in indonesia.55 meanwhile, codification is written law from the western as a guideline for implementing and resolving disputes.56 the adat law originates from religious values and is contradictory transforming into 51 iskandar muda, “the effect of allocation of dividend of the regional government-owned enterprises and the empowerment efforts on the revenue of regional government: the case of indonesia” 16 at 246. 52 vel, zakaria & bedner, "law-making as a strategy for change," supra note 14 at 8– 9. 53 anders, "law at its limits," supra note 16 at 18. 54 priambodo, supra note 15 at 156. 55 ibid at 141. 56 henley & davidson, “in the name of adat," supra note 37 at 848. 13 | indonesian journal of law and society state law. thus, adat law is interpreted as a variety that becomes a unity.57 the debate between adat law and western concepts becomes a dilemma when adat law modifies into state law to respect adat law communities.58 it means a good law from community values but people in every region has different culture and habits. it will be more critical if adat law is considered a law that binds the community with inherent characteristics such as magic religious, and integralist values that emphasize family law.59the adoption of adat law into state law does not aggravate adat values. however, appear the possibility of the values disappearing and eroding because there is no legal stability between the society and the rules. the consequence is that the laws have different purposes because the character forced applied and developed in distinct areas.60 the codification is evidence of a legal discrepancy between adat and state law. it certainly reduces the adat law's concept because the power of the law has disappeared.61 transforming adat law into state law should be neutral law to satisfy the community. not all types of adat law can be used as state law because it will leave the adat law's meaning.62 western scholars view adat law based on two false assumptions. first, adat law can be discussed through the written aspect, translated from original documents, or approved by religious laws.63 second, adat law is systematic in parallel with western laws. as a result of understanding the paradigm of western people, then adat law is seen by the wrong side with all consequences, which are evident in subsequent 57 jaap timmer, “being seen like the state: emulations of legal culture in customary labor and land tenure arrangements in east kalimantan, indonesia” (2010) 37:4 american ethnologist 703–712 at 705. 58 gary f bell, “minority rights and regionalism in indonesia – will constitutional recognition lead to disintegration and discrimination?” (2001) 24 at 792. 59 liauw et al, supra note 14 at 41. 60 irzal rias, “the effect of policy of rural administration on customary villages; experience of rural administration in west sumatera indonesia” (2015) 6 8 at 410. 61 huizenga, supra note 21 at 15. 62 omara, supra note 18 at 423. 63 jacqueline vel and willem van der muur, “report of the conference ‘adat law 100 years on: towards a new interpretation?’” 2017 at 4–5. 14 | adat law and legal pluralism in indonesia: toward a new perspective? developments.64 this understanding continues how adat law will transform into state law that is considered parallel to the absorption of western law into state law. it is crucial to review adat law theories interpreted precisely as a part of indonesian law.65 most western scholars consider that adat law concepts are not in line with indonesian need that their perspective is based and sourced from indonesian cultural values.66 maintaining adat values and characteristics is an obligation if western law is dominant in adopting adat law because it can eliminate the adat value.67 so the recognition and protection of the adat law do not fully justify adopting adat law into state law. adat law will guarantee to exist within the scope of indigenous peoples. thus, transforming adat law into state law is not the best way to provide applicable law for the community. adat law is the only benchmark for making a state law. besides, adat law also cannot be applied universally to all people. at the same time, the government's role seeks to protect and preserve by allowing indigenous peoples to implement their laws as long as they do not contradict national law. v. a struggle to maintain adat law in indonesia the appearance of strengthening adat law occurred after the reformation caused the military regime's control of community power to weaken. at the same time, the power organized all aspects, including the village-level government.68 the adat law is supposed to influence all sectors because it has emerged from indigenous values that are morally bound. the political sector is how the headman can manage people to obey the rules based on their political strength.69 moreover, police and judges need respect from 64 ibid at 6. 65 butt, supra note 39 at 66. 66 vijesh v krishna et al., "land markets, property rights, and deforestation: insights from indonesia" (2017) 99 world development 335–349 at 336. 67 dominikus rato, hukum adat kontemporer (laksbang justicia, 2015) at 69. 68 ridwan, dimyati & azhari, supra note 8 at 111. 69 ibid at 112. 15 | indonesian journal of law and society society to enforce laws. its circumstance showed that the indigenous values are defeated the power of state institutions. adat law with various sanctions has psychological and physical sanctions such as beatings, expelling from the village, paraded around, destruction of property which adjusted to the type of violation committed.70 in reality, the sanctions of violating adat law have more deterrent effects than the sanction is limited to execution and how the perpetrator does not repeat the action. it is the difference between adat and state law because people can avoid sanctions.71 after all, it does not contain the values, just limited to abort obligation because of the codified law that has clear sanctions. observing the power of adat law as a legal solution for society should be supported by the government infrastructure and policymakers as part of the adat community. the aims are that the law will be appropriate and understood by policymakers and the people who implement it. the state more respected the state law in the national legal system. the claim is strength on national legal development paradigm that relies on codification and unification.72 that paradigm does not permit legal pluralism in indonesia, even though the 1945 constitution and some provisions on legislation provide opportunities to present adat law to solve problems in the community. however, the reality of adat law has no proper place to exist. the evidence is how many law enforcement officers, such as the police, prosecutors, and judges, override adat law's role.73 as pragmatism by the government (law enforcement), it is not uncommon in cases and certain regions to recognize legal pluralism.74 several districts in indonesia prove adat law has a substantial influence on people's lives, but the power possessed is not as high as state law. 70 bakti (bobi) setiawan & sudharto p hadi, “regional autonomy and local resource management in indonesia” (2007) 48:1 asia pacific viewpoint 72–84 at 77. 71 astuti & mcgregor, “indigenous land claims or green grabs?”, supra note 30 at 14– 15. 72 edward aspinall, “democratization and ethnic politics in indonesia: nine theses” (2011) 11:2 journal of east asian studies 289–319 at 294. 73 simon butt, "regional autonomy and legal disorder: the proliferation of local laws in indonesia" (2010) singapore journal of legal studies at 4. 74 stepanus makambombu, “access to agrarian justice in sumba, eastern indonesia” 22 at 4. 16 | adat law and legal pluralism in indonesia: toward a new perspective? legal pluralism recognized by the government makes misinterpretations to protect the rights of indigenous peoples.75 when people want to admit and preserve the adat laws, the government adopts adat law into state law. this intention should appreciate, but some provisions should anticipate that adat law has contrasting values with the modern society that tends to cause new problems if applied to plural society. not all regions have adopted adat law to be by-law. the example is by-law 5/2008 on guidelines for establishing village community organizations of adat law is originated from the identity and habits of indigenous peoples, so it has not been able to become a fair law to all parties.76 state law makes a binding policy for society in specific legal areas. however, implementing adat law as state law will reduce the sacred values of adat law.77 it should be that the adat law is a comparison and benchmark for how the state law can implement adjusting the adat values that are more suitable for a plural society. adat law is proper to recognize, protect, and preserve by the community and government, but the government is the structure and facilitator to execute the protection. the adat law is an unwritten law with indigenous values and habits that grows with the community. so whatever the reason, adat law could not become a state law that applies to the general community. it is a guide making state laws or people in certain areas, both in terms of personality and habits, also the modern characters of society that continue to develop.78 in addition to the contradiction between adat law and state law, transforming adat law into state law is potentially removing the law's sacredness values.79 while state law has the strength to bind the broader community, if the state law wants to combine the custom values, it should be adapted to the community's circumstances and legal necessity. 75 omara, supra note 18 at 421. 76 ibid. 77 ibid at 425. 78 ibid at 422. 79 henley & davidson, “in the name of adat," supra note 37 at 835. 17 | indonesian journal of law and society the question is how to protect the adat law? adat law can preserve the construction through the recognition and protection of adat law as national regulation.80 if the government should codify the law, it is limited to the government's protection.81 it is different from transforming adat law into state law because the content is the extent to which the government will protect adat law, the rights of indigenous peoples, and the division of tasks between the central government and local governments. adat law will never be a state law because the adat institution has the right to regulate and has full authority over the law. the government recognizes and protects all adat law types. the government can adopt the adat law into state law as guidance in law-making that the implementation to establish discipline and still respecting adat law as original indonesian law. adat law is uncodified because of the dynamic character which follows society's development to achieve justice. in the specific case, the government supports the law through adat court as the institution that can give legal advice and solution to the community based on the national regulation of adat.82 however, the principle and values of the solution find on every adat law in the adat area. it provides to indigenous peoples the materialization of adat law protection executed by the government according to the dispute resolutions on national regulation. adat court forms in every region through by-laws and controls of the supreme court as the highest judicial power holder in the trial environment. the hierarchy of these provisions is not the responsibility of the supreme court because the adat court can implement according to the values of judicial power and not disturb the judicial procedure that has been executed. it means that not all cases will be resolved by state court because the legal material is different from the indigenous values. 80 setiawan & hadi, supra note 70 at 76. 81 daniel fitzpatrick, “disputes and pluralism in modem indonesian land law” 22 43 at 182. 82 frans simangunsong, “hukum adat dalam perkembangan: paradigma sentralisme hukum dan paradigma hukum dan pluralisme hukum” 8 at 6–8. 18 | adat law and legal pluralism in indonesia: toward a new perspective? vi. conclusion a pluralistic culture influences legal pluralism in indonesia. it raises adat law from the indigenous values of community and habits to be state law. the concept will trigger an integralist state that forms a semi-democratic system in indonesia. it should be filtered to become a state law that will apply generally. in the contemporary era, the idea emerged to transform adat law into state regulation through by-laws. by-law is assumed to have law enforcement that binds the community because it comes from the habits of the community. it is identical to community trust and results in adat law that is not universally applicable to state regulation. it should indicate a new paradigm in recognizing and protecting adat law and not through by-laws because adat and state laws could not be a unity law, the government creates comprehensive rules to maintain adat values. finally, it becomes a benchmark to adopt adat values that can apply in modern societies. acknowledgments none. competing interests the author declared that she has no conflict of interests. references adam, jeroen, “forced migration, adat, and a purified present in ambon, indonesia” (2008) 47:4 ethnology: international journal of cultural and social anthropology. ananta, muhamad jefri, dominikus rato & i wayan yasa, “perceraian dan akibat hukumnya terhadap anak dan harta bersama menurut hukum adat osing di desa aliyan, kecamatan rogojampi, kabupaten banyuwangi” (2017) 4:3 lentera hukum 221–236. 19 | indonesian journal of law and society anders, gerhard, “law at its limits: interdisciplinarity between law and anthropology” (2015) 47:3 the journal of legal pluralism and unofficial law 411–422. ardiansyah, lalu sabardi & widodo dwi putro, “national law relations with customary law in the establishing of regulation of the recognition of indigenous peoples rights to the land of ulaya” ijmmu. aspinall, edward, “democratization and ethnic politics in indonesia: nine theses” (2011) 11:2 journal of east asian studies 289–319. astuti, rini & andrew mcgregor, “indigenous land claims or green grabs? inclusions and exclusions within forest carbon politics in indonesia” (2017) 44:2 the journal of peasant studies 445–466. bakker, laurens & sandra moniaga, “the space between: land claims and the law in indonesia” (2010) 38:2 asian journal of social science 187–203. bell, gary f, “minority rights and regionalism in indonesia – will constitutional recognition lead to disintegration and discrimination?” (2001) 24. belyaeva, olga maratovna, “on the system of german law in f.c von savigny’s doctrine” (2017) 10 6. benda-beckmann, franz von & keebet von benda-beckmann, “myths and stereotypes about adat law: a reassessment of van vollenhoven in the light of current struggles over adat law in indonesia” (2011) 167:2–3 bijdragen tot de taal-, landen volkenkunde / journal of the humanities and social sciences of southeast asia 167–195. benda-beckmann, keebet von, “anachronism, agency, and the contextualisation of adat: van vollenhoven’s analyses in light of struggles over resources” (2019) 20:5 the asia pacific journal of anthropology 397–415. bräuchler, birgit, “the revival dilemma: reflections on human rights, self-determination and legal pluralism in eastern indonesia” (2010) 42:62 the journal of legal pluralism and unofficial law 1–42. 20 | adat law and legal pluralism in indonesia: toward a new perspective? brian z tamanaha, “understanding legal pluralism: past to present, local to global” (2008) 30 sydney law review. buskens, léon & baudouin dupret, “the invention of islamic law: a history of western studies of islamic normativity and their spread in the orient” in after orientalism: critical perspectives on western agency and eastern re-appropriations (brill) (2015). butt, simon, “traditional aditional land rights before the indonesian constitutional court” 21. dominikus rato, hukum adat kontemporer (laksbang justicia, 2015). fitzpatrick, daniel, “disputes and pluralism in modem indonesian land law” 22 43. gary f bell, “multiculturalism in law is legal pluralism—lessons from indonesia, singapore and canada” (2006) singapore journal of legal studies. hauser-schäublin, brigitta, “adat and indigeneity in indonesia: culture and entitlements between heteronomy and self-ascription</i>” (2014) 29:3 journal of social issues in southeast asia 769. henley, david & jamie s davidson, “in the name of adat : regional perspectives on reform, tradition, and democracy in indonesia” (2008) 42:4 modern asian studies 815–852. hidayat, herman et al, “forests, law and customary rights in indonesia: implications of a decision of the indonesian constitutional court in 2012: forests, law and customary rights in indonesia” (2018) 59:3 asia pacific viewpoint 293–308. huizenga, daniel, “articulations of aboriginal title, indigenous rights, and living customary law in south africa” (2018) 27:1 social & legal studies 3–24. jacqueline vel and willem van der muur, “report of the conference ‘adat law 100 years on: towards a new interpretation?’” 2017. keebet von benda-beckmann & bertram turner, “legal pluralism, social theory, and the state” (2018) 50:03 the journal of legal pluralism and unofficial law. 21 | indonesian journal of law and society komnas ham, “masyarakat hukum adat wajib dilindungi dalam peraturan perundang-undangan”, (5 august 2021), online: <https:// www.komnasham.go.id/index.php/news/2021/8/5/1861/masyarakathukum-adat-wajib-dilindungi-dalam-peraturan-perundangundangan.html>. krishna, vijesh v et al, “land markets, property rights, and deforestation: insights from indonesia” (2017) 99 world development 335–349. laksana, dhelima putri, dominikus rato & emi zulaikha, “the cost of panai’ as the marriage requirement for the migrant bugis tribe under adat law” (2020) 1:1 indonesian journal of law and society 57–74. liauw, yantje et al., "adat law in designing of land law system" (2015) 8. luis kutner, "legal philosophers: savigny : german lawgiver" (1972) 5:22 marquette law review. maharani, diah pawestri, “‘a-logical’ chacarcter of indonesian adat law based on paul scholten’s perspective” 13. makambombu, stepanus, “access to agrarian justice in sumba, eastern indonesia” 22. muda, iskandar, “the effect of allocation of dividend of the regional government-owned enterprises and the empowerment efforts on the revenue of regional government: the case of indonesia” 16. napoh, datu, “recognition of the customary land law in the constitution of indonesia and malaysia” (2015) 2:2 brawijaya law journal 1–19. nurjaya, i nyoman, “pengakuan hukum dan konstitusi terhadap komunitas adat dalam negara multikultural indonesia : apakah pengakuan sejati atau pura-pura?” (2014) 14. omara, andy, “does the current regional autonomy support legal pluralism in indonesia?” 10. pinatih, dewa ayu agung intan & malik akbar mulki rahman, “awigawig and legal awareness of community: how does customary 22 | adat law and legal pluralism in indonesia: toward a new perspective? law provide security for local people and aliens?” (2020) 2:4 the indonesian journal of international clinical legal education 491– 502. priambodo, bono budi, “positioning adat law in the indonesia’s legal system: historical discourse and current development on customary law” (2018) 02 udayana journal of law and culture 25. rahmatian, andreas, “friedrich carl von savigny’s beruf and volksgeistlehre” (2007) 28:1 the journal of legal history 1–29. rias, irzal, “the effect of policy of rural administration on customary villages; experience of rural administration in west sumatera indonesia” (2015) 6 8. ridwan, ridwan, khudzaifah dimyati & aidul fitriciada azhari, “perkembangan dan eksistensi hukum adat: dari sintesis, transplantasi, integrasi hingga konservasi” (2017) 6:2 jurnal jurisprudence 106. sarip, sarip & diana fitriana, “legal antropology approach on the application of village website in digital economic era in indonesia” (2018) 5:2 unifikasi : jurnal ilmu hukum 96. setiawan, bakti (bobi) & sudharto p hadi, “regional autonomy and local resource management in indonesia” (2007) 48:1 asia pacific viewpoint 72–84. simangunsong, frans, “hukum adat dalam perkembangan: paradigma sentralisme hukum dan paradigma hukum dan pluralisme hukum” 8. simon butt, "regional autonomy and legal disorder: the proliferation of local laws in indonesia" (2010) singapore journal of legal studies. siregar, taufik, “adoption of ethnic customary system (adat) in modern confliction resolution” (2018) 8: sept turkish online journal of design art and communication 971–977. 23 | indonesian journal of law and society sopian, najmu laila, “informal dispute resolution based on adat law: a case study of land dispute in flores east nusa tenggara, indonesia” (2015) 5:2 indonesia law review 106-122–122. swenson, geoffrey, “legal pluralism in theory and practice” (2018) 20:3 international studies review 438–462. timmer, jaap, “being seen like the state: emulations of legal culture in customary labor and land tenure arrangements in east kalimantan, indonesia” (2010) 37:4 american ethnologist 703–712. ulum, muhammad bahrul & nilna aliyan hamida, “revisiting liberal democracy and asian values in contemporary indonesia” (2018) 4:1 constitutional review 111–130. van hoecke, mark & mark warrington, “legal cultures, legal paradigms and legal doctrine: towards a new model for comparative law” (1998) 47:3 international and comparative law quarterly 495–536. vel, jacqueline, yando zakaria & adriaan bedner, “law-making as a strategy for change: indonesia’s new village law” (2017) 4:2 asian journal of law and society 447–471. wanma, george frans, et al, "the existence of adat law community in indonesian legal regulations" (2015) 7. yusar, yusar, “the youth, the sciences students, and religious radicalism” (2016) 16:2 al-ulum 330. 24 | adat law and legal pluralism in indonesia: toward a new perspective? this page intentionally left blank microsoft word 16758-ijls.docx indonesian journal of law and society (2020) 1:1 75-100 issn 2722-4074 | doi: 10.19184/ijls.v1i1.16758 published by university of jember, indonesia available online 31 march 2020 * corresponding authors’ e-mail: edofernando1405@yahoo.com criminal law policy on the protection of children from underage marriage edo fernando* university of jember, indonesia abstract. children as people belonging to vulnerable groups need protection in their growth and development, one of which is protection from underage marriages. ironically, indonesia is in a state of underage marital emergency. normatively, the child protection act places the role of parents in preventing underage marriages. on the other hand, the marriage law facilitates underage marriage through the parents' right to submit marriage dispensations. so, normatively there is a dualism of the role of parents in protecting children from underage marriages. this article examines the conflict between marital dispensation norms and parental obligation norms to prevent underage marriages as well as criminal law policies on child protection from underage marriages from the perspective of the child protection act. based on a literature review, the marriage dispensation norm that puts parents as applicants for marriage dispensation is contrary to the role of parents to prevent underage marriages in child protection efforts. this is because underage marriages are practices that must be prevented. after all, they place children in dangerous conditions and violate children's rights. meanwhile, the criminal law policy against children from underage marriages in the child protection act is not explicitly and explicitly accommodated. this article ends with a suggestion to regulate the protection of children from underage marriages explicitly and specifically in the marriage law and the child protection act. keywords: criminal law policy, underage marriage, child protection. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 12/02/2020 reviewed: 14/02/2020 accepted: 10/03/2020 76 | criminal law policy on the protection of children from underage marriage i. introduction children are those who are before 18 years old including those who are still in the womb.1 children are contained within the rights of children who need to be protected as creatures that are still small and weak. protection of children's human rights is important because, on the one hand, children belong to vulnerable groups, but on the other hand, children are the capital of sustainable development. one of the protections needed by children is protection from underage marriages. ironically, indonesia is now in a situation of underage marital emergencies. the observation of the united nations international children's emergency fund (unicef) ranks indonesia 7th in the world2 and 2nd in asean after cambodia.3 deputy minister for child growth and development ministry of women's empowerment and child protection, lenny n rosalin said 1 out of 9 girls married under the age of 18 years or around 375 girls per day are forced to marry early.4 the analysis of underage marriages for the central statistics agency (bps) in 2016 showed that in the period 2008-2015, the number of underage marriages reached 25%, meaning that it was relatively stable and there was no significant decrease.5 underage marriages are harmful practices for children6 and violate children's rights.7 children's rights that tend to be neglected and even violated include 1 law no. 35 of 2014 on the amendment to law no. 23 of 2002 on child protection. 2 nuriwan trihendrawan. "indonesia ranks seven cases of child marriage", online: <https://nasional.sindonews.com/read/1254271/15/indonesia-performing-t tujuhkasus-perak-anak-1509711401>. 3 cnn indonesia, "united nations highlights number of child marriage in indonesia," online: <https://www.cnnindonesia.com/style-life/20170207162847277-191868/pbb-soroti-jotal-perikah-anak-di-indonesia?>. 4 kabar bisnis, "indonesia is considered a child marriage emergency," online: <http://kabar24.bisnis.com/read/20171120/15/711034/indonesia-di-generatedinformation-perkawinan-a>. 5 cnn indonesia, supra note 3. 6 yusuf hanafi. the controversy of child marriage under the perspective of islamic jurisprudence, international human rights, and national law (bandung: cv mandar maju). 7 nawal m nour. "child marriage: a silent health and human rights issue" (2009) 2 rev obstet gynecol 52. 77 | indonesian journal of law and society the right to health, the right to be free from violence, as well as the right to education, and adequate livelihoods. in the aspect of health, the ministry of health studies that child marriages are 4.5 times as dangerous as potential reproductive harm, at risk of pregnancy (fetal brain damage and developmental disorders of children born), until death.8 the results of the demographic and health survey of indonesia (idhs) show the maternal mortality rate (mmr) in indonesia is higher than that of many countries in asean equal to 359 per 100,000 live births.9 regarding the right to be free from violence, it turns out that underage marriages are vulnerable to violence. the indonesian women's coalition states that underage marriages are the most common entry point for violence.10 a marriage that occurs at vulnerable school-aged children also inhibits children from accessing and getting an education. data on the national socio-economic survey (susenas) in 2015 showed that the number of underage marriages was vulnerable to those who graduated from junior high school by 41.5%, followed by elementary school graduates reaching 40% and high school graduates by 8.83%. if they want to continue post-marriage school, generally, the school prohibits married children from continuing school.11 when children's education is stopped, another dangerous impact is decent work that is entitled to the child. the results of unicef's analysis stated that women who married at an early age worked more in the informal sector (68.6%) and agriculture (41.4%) than the formal sector (31.4%).12 8 hukumonline, "early marriage is judged violating girls' rights," online: hukumonline.com <http://www.hukumonline.com/berita/baca/lt543f9219071a8/perikah-diniinvaluedlanggarhak-anak-perempuan>. 9 independen.id, "lost access because of marriage at children's age," online: <http://independen.id/read/data/479/hilang-akses-lantaran-menikahdi-usia-anak/>. 10 voa indonesia, "child marriage practices trigger violence against women," online: voa indonesia <https://www.voaindonesia.com/a/practical-consumptionchildren-picuviolence-/3628402.html>. 11 harnas, "early marriage vulnerable school dropouts," online: harnas.co <http://www.harnas.co/2016/07/22/nikah-dini-rentan-putus-school>. 12 metrotvnews. "the negative impact of early marriage," online: <http://rona.metrotvnews.com/ k health/nbwebgbk-dampak-negatif-perikah-usiaini>. 78 | criminal law policy on the protection of children from underage marriage children as an inseparable part of the survival of humans and the nation and state are entitled and need to be protected. this protection is intended to realize children's welfare by providing guarantees for the fulfillment of children's rights without discriminatory treatment.13 in this regard, the government has issued a policy in the form of legislation related to child and marriage protection through law no. 1 of 1974 on marriage (marriage law) and law no. 35 of 2014 on the amendment to law no. 23 of 2002 on child protection (child protection act). marriage law as a lex specialis related to marriage, has set the age of marriage. article 7 paragraph (1) limits the age of marriage to a minimum of 19 years for male candidates and a minimum of 16 years for female candidates. marriage can still occur even if one or both candidates do not meet the minimum age limit as article 7 paragraph (1) of the marriage law, namely through an application for marriage dispensation by parents to the religious court.14 this means that marriage dispensation provides a way to facilitate underage marriages, whereas the child protection act mandates to prevent underage marriages because they are vulnerable to violating children's rights and injuring child protection efforts. also, the submission of marriage dispensation in the marriage law does not accommodate the minimum age limit, and the reasons/conditions for marriage dispensation are granted to make marriage dispensation easier without considering the best interests of the child. while protecting children from underage marriages, the child protection act does not regulate underage marriages expressly and comprehensively. the child protection act only emphasizes that parents have an obligation and responsibility to prevent children from underage marriages. however, this arrangement is not accompanied by sanctions if the obligations and responsibilities are not carried out. in connection with if there is no criminal offense in underage marriages, to date, the positive criminal law in indonesia, 13 law no. 35 of 2014 concerning amendments to law no. 23 of 2002 concerning child protection. 14 law number 1 of 1974 concerning marriage. 79 | indonesian journal of law and society both the criminal code and the laws and regulations that lex specialis, have not yet regulated the conduct of underage marriages.15 underage marriage arrangements that are still not comprehensive even contradictory between the marriage law and the child protection act have the effect of making it easier for children to be in a situation of underage marriages, and children who have been married are vulnerable to being protected by their rights. there are two fundamental issues examined in this article. first, does article 7 paragraph (2) of the marriage law contradicts article 26 paragraph (1) letter c of the child protection act in protecting children's efforts? second, what is the criminal law policy in providing child protection from underage marriages in the perspective of the child protection act? this type of research to study the problems in this article is the research of statute and conceptual approaches.. in order to solve legal issues at the same time prescribe what should be, the sources of legal materials used include primary legal materials and secondary legal materials. primary legal material consists of the child protection act and the marriage law. secondary legal material includes publications on a law that are not official documents, such as legal textbooks/literature, legal journals. the legal materials are then analyzed by steps, including identifying legal facts, eliminating irrelevant matters, and establishing legal issues; the collection of legal materials; examine the proposed legal issues; draw conclusions that address legal issues, and provide a prescription. ii. the marriage act vs the child protection act children are part of legal subjects that play a strategic role in the nation and state. in essence, children cannot protect themselves from a variety of actions that cause mental, physical, social harm in various fields of life and livelihood. 15 supriyadi & yulkarnain harahap. "underage marriages in the perspective of criminal law and islamic law" (2009) 21: 3 mimb huk 599. 80 | criminal law policy on the protection of children from underage marriage so that children need protection so as not to suffer losses both mentally, physically, and socially.16 basically, legal protection for children is an effort to protect two things, namely fundamental rights and freedoms of children and interests related to children's welfare.17 in the perspective of human rights, children are part of vulnerable groups18 so that they are entitled to treatment and protection that are more relevant to their specificities, human rights reference mentions seven groups that are included in vulnerable groups, namely: a. refugees, b, internally displaced persons (idps); c. national minorities, d. migrant workers; e. indigenous peoples, f. children; and g. women.19 as a manifestation, the protection of children is a part of the development agenda as outlined in the policy in the form of laws and regulations. the laws and regulations in indonesia that specifically regulate the legal basis for child protection are the child protection act. in the case of underage marriages, the child protection law mandates parents to prevent their children from marrying at the age of the child as stipulated in article 26 paragraph (1c). the following provision, article 26 paragraph (2), regulates the transfer of parental obligations and responsibilities. "in the event that parents are absent, or their whereabouts are unknown, or for some reason they cannot carry out their obligations and responsibilities, the obligations and responsibilities referred to in paragraph (1) may be transferred to the family, which is carried out under statutory provisions. " regarding underage marriages, the united nations has campaigned massively that underage marriages are harmful to traditional practices,20 a 16 maidin gultom. legal protection of children and women (medan: refika aditama, 2012). 17 waluyadi. child protection law (bandung: mandar maju, 2009). 18 law number 39 of 1999 concerning human rights (article 5 paragraph (3). 19 willem van genugten jm, “human rights reference” (1994) hague neth minist foreign aff 73. 20 yusuf hanafi, supra note 6. 81 | indonesian journal of law and society tradition that reflects the values and beliefs held by the community over many generations, in which some this tradition provides benefits for members of the community but some others are harmful to certain groups, such as children.21 interestingly, although this traditional practice has a dangerous impact and is even contrary to human rights, this practice still survives and is even more widespread. besides, the united nations and other international institutions agree and declare that underage marriages violate human rights and children's rights.22 this agreement was later declared in several international conventions consisting of the universal declaration of human rights (udhr), the convention on the right of the child (crc), and the convention on the elimination of all forms of discrimination against women (cedaw). in the udhr's view, marriage is required to have the right to freedom and full agreement from both parties to be married.23 the terms of the agreement to get married must come from the two candidates who will marry, not from the other party. while according to the crc, the minimum age for marriage for both men and women is 18 (eighteen)24 moreover, the crc does not tolerate marriages under the age of 18 years. like the udhr and crc, cedaw, as a convention aimed at women as part of vulnerable groups, does not allow underage marriages. because in practice, underage marriages are more common in girls and harm the rights of girls. as the results of the international plan and coram international research in 3 countries, namely bangladesh, pakistan, and indonesia, the number of underage marriages is 21 ibid. 22 nawal m. nour, supra note 7. 23 (a) men and women of full age..., have the right to marry and to found a family. they are entitled to equal rights as to marriage, during the marriage, and at its dissolution. (b) marriage shall be entered into only with the free and full consent of the intending spouses. see article 16 of the universal declaration of human rights. 24 a child means every human being below the age of eighteen years unless, under the law applicable to the child, the majority is attained earlier. see convention on the rights of the child. 82 | criminal law policy on the protection of children from underage marriage mostly done by girls, except in pakistan, the highest number of underage marriages is performed by boys.25 smith in yusuf hanafi stated that children's rights are at the heart of international human rights instruments (comprehensive including civil and political, economic, social and cultural rights, the indivisibility and universality of the united nations human rights system are at the heart of children rights).26 thus, the protection of children from underage marriages through prevention by parents shows the importance of protecting children's rights. article 26 paragraph (1), which continues in paragraph (2), regulates the transfer of parental obligations and responsibilities. there are three reasons for the transfer of parental responsibilities and obligations according to the provisions of this article, namely because of the absence of parents, because the parents are not known, and because they cannot carry out their obligations and responsibilities. the provisions of article 26 paragraph (2) are not accompanied by provisions in matters such as whether parents or parties who have transferred the obligations and responsibilities stated or deemed unable to carry out the obligations, and how the legal consequences of the transfer of obligations and responsibilities. that the child protection act has mandated parents to prevent underage marriages as part of child protection efforts, ironically, other regulations provide deviations for underage marriages, namely marriage dispensation regulated in article 7 of the marriage law. (1) marriage is only permitted if the man has reached the age of 19 (nineteen) years and the woman has reached 16 (sixteen) years; 25 plan international, “getting the evidence: asia child marriage initiative summary report” (2016) 1. 26 yusuf hanafi, supra note 6. 83 | indonesian journal of law and society (2) in the case of irregularities in paragraph (1), this article may request a dispensation from the religious courts or other officials requested by both male or female parents. the norms of marriage dispensation and the obligation of parents to prevent underage marriages both involve the role of parents. article 26 paragraph (1c) of the child protection act involves the role of parents to prevent underage marriages, while article 7 paragraph (2) involves the role of parents to propose marriage dispensations so that marriages that are not old enough can take place. consequently, dualism arises from the role of parents in the perspective of the marriage law and the child protection act. concerning child protection efforts, marriage dispensation tends to conflict with the obligation of parents to prevent underage marriages as child protection efforts. when parents apply for a dispensation, marriage at the religious courts and the judges are granted. however, if there are things that are proven to be harmful to the child in the future, then there is a conflict between marriage dispensation and the obligation of parents to prevent child marriage. it was mentioned earlier that in addition to conflicting with international conventions, underage marriages became contrary to the obligations of parents to prevent underage marriages as an effort to protect children because of underage marriages, so they were vulnerable to neglect and violated children's rights. essential aspects of marriage that affect the realization of marriage goals, namely the physical and psychological aspects of candidates who will get married. regarding physical aspects, this aspect is especially essential for girls, because of the phases of pregnancy and childbirth. both phases require a healthy physique and are ready to undergo the process so that the baby is born healthy, and the mother's condition is also healthy. however, the age of the child is an age that is not feasible/competent to reach the phase of pregnancy and childbirth. in unicef's view, pregnancy at the age of a child is not recommended because reproductive functions performed under the age of 20 years are at high risk of developing the disease resulting 84 | criminal law policy on the protection of children from underage marriage in death.27 the risk of contracting the disease until death occurs because humans experience a phased growth that strategy is at the age of 12-19 years and in fetuses aged the last four months. in both phases, adequate nutrition becomes a necessity. the age of the pregnant mother and the fetus both need nutrition, so there is a struggle for nutrition. when the baby's nutritional intake is not met, then the baby is born imperfect, brain development is not perfect, low body weight to experience disability. if maternal nutrition is inadequate, then it results in eclampsia, bleeding, and even death.28 when adverse impacts on the mother and child still in the womb occur, this violates the rights of the child in protecting children in the health sector as stipulated in the child protection act, namely the right to be cared for and cared for from the womb,29 the right to be protected from acts that disturb the child's health and child development30 and protection rights from diseases that threaten the survival and/or disability of children.31 in addition to physical aspects, psychological aspects also play an important role in marriage. in adolescence, mental and emotional status is immature and tends to be unstable.32 mental maturity plays an important role because, in marriage, there are consequences for new roles and responsibilities, namely as husband and wife to parents. psychic immature and unstable in living a domestic life can trigger domestic violence (domestic violence). the ministry of women's empowerment and child protection (kpppa) states that the increasing trend of domestic violence is in line with the increase in underage marriages, which are considered as triggers.33 likewise, lori l. heise stated that girls who get married early are very vulnerable to domestic 27 decision of the constitutional court number 30-74/puu-xii/2014 [constitutional court decision number 30-74/puu-xii/2014]. 28 ibid. 29 child protection act, supra note 13. 30 ibid. 31 ibid. 32 decision of the constitutional court number 30-74 / puu-xii / 2014, supra note 28. 33 media indonesia. "early marriage vulnerable triggers domestic violence" (11 october 2016), online: <http://mediaindonesia.com/read/detail/71508-perikah-dinirentan-picu-kdrt>. 85 | indonesian journal of law and society violence, harassment, and neglect.34 adverse conditions affecting children as a result of underage marriages, which are not supported by mature psychological aspects, injure the protection of children's rights in the social field, namely the right to protection from various ill-treatment.35 the marriage world, which gives rise to new roles and responsibilities, turns out to be vulnerable in eliminating the roles that children should play in their developmental age. the role of children, especially girls, is often overlooked due to underage marriages, namely education. unicef research results show a correlation between the age of marriage and the level of education that women who are married under age tend to have low levels of education and vice versa, women with higher education levels tend to get married over the age of 18 (eighteen) years.36 the practice of underage marriages, which results in the loss of the opportunity for children to get an education, violates the protection of children in the field of education, namely the right to get an education in the framework of development37 and the right to get the most extensive education.38 marriage dispensations that end in marriages tend to conflict with the prevention of parents to prevent underage marriages as child protection efforts. moreover, legally marriage dispensation has not been regulated, comprehensively especially regarding the minimum age limit, and the terms of marriage dispensation are granted. according to mardi candra, marriage dispensation in the marriage law has not prioritized children's interests and not under the objectives of child protection.39 underage marriages that occur through marriage dispensation cannot be blamed because marriage dispensation itself has its arrangements. however, 34 heise, lj pitanguy & a germain, “violence against women: the hidden health burden.” (1994) world bank wash dc 255. 35 "law number 23 of 2002 concerning child protection". 36 unicef, “ending child marriage progress and prospects” 3. 37 child protection act, supra note 13. 38 ibid. 39 mardi candra. aspects of indonesian child protection analysis of underage marriage, first ed (jakarta: prenada media, 2018). 86 | criminal law policy on the protection of children from underage marriage the harmful effects that befall children due to underage marriages also cannot be left alone because, in addition to endangering children, underage marriages are dangerous for the community. therefore, in order to protect children who receive marriage dispensation, marriage dispensation should be regulated by containing child protection. mardi candra provides the concept of marriage dispensation that breathes child protection, namely:40 first, involving the full and maximum role of children in the management of the case for the determination of marriage dispensations in the religious courts. second, the process of marriage dispensation proceedings should be conducted in private. third, norms governing child protection and marriage dispensation must strictly stipulate the criteria for children who can be given marriage dispensation for minors. fourth, norms governing child protection and marriage dispensation must set a minimum age limit for marriage dispensation. fifth, regulate the guarantee of parents or guardians of children against underage marriages. sixth, contains norms that can create synchronization and harmonization between the child protection act and the marriage law so that child protection can be realized in marriage dispensation in the court. iii. criminal law policy in providing children protection from under marriage a. child protection from underage marriage the child protection act has regulated the obligations and responsibilities of parents to prevent minors from underage marriage, as referred to in article 26. in practice, parents have a role and involvement and become a driver in the marriage of their underage children. according to gynecol in santosh k. mahato, there are three main reasons parents force their children to marry 40 ibid. 87 | indonesian journal of law and society young, namely (1) poverty, (2) social pressure; and (3) beliefs offer protection.41 underage marriages often occur in families with a lower-middle economy. for them, this practice is believed to be a way to reduce the family's economic burden. parents assume that children, especially girls, are a burden to the family. girls are expensive in terms of food, clothing, and education. in the end, they are not enjoyed by the family but brought in household life. even in the case of dowry, underage marriages are considered to avoid increasing the dowry's value because it only applies to higher education to get a higher dowry value. "dowry perpetuates child marriage as it encourages parents to marry off their girls early to avoid an increase in the dowry amount (more educated girls usually require a higher dowry). girls are considered an economic burden for their family of origin and a "parayadhan" or property that belongs to the marital family. hence, the tendency is to marry girls as early as possible and reduce investment in their daughters. investing in girls' education is not considered worthy as girls will be moved to the groom's household and will be employed in household chores. on the other hand, girls' limited education and livelihood options lead to marriage being one of the few options for girls' futures."42 besides, parents encourage underage marriages for fear that if their child does not get married soon, be considered an old maid. even marrying a young girl is believed to be a way to maintain the child's virginity and purity. "there was a common belief among parents that marrying the daughters of young should protect them from rape, premarital sexual activity, unintended pregnancy, and sexually transmitted infections, especially human immunodeficiency virus (hiv) and aids."43 41 santosh k mahato, “causes and consequences of child marriage: a perspective” (2016) 7:7 int j sci eng res 700. 42 ibid. 43 ibid. 88 | criminal law policy on the protection of children from underage marriage one case of underage marriages that occurred at the instigation of parents is an underage marriage between lutviana ulfah and hm pujiono cahyo.w. the motive of lutviana ulfah's father, suroso, allowed his underage son to marry pujiono cahyo, owner of the miftahul jannah islamic boarding school and brass entrepreneur from pt. silenter (sinar lendoh terang), is so that he and his family get facilities and various kinds of benefits and even raise the family's economic status. in this case, ulfa's parents know that their child is underage and not yet married. however, because he was tempted by hm pujiono cahyo.w's economic status, suroso did not prevent the marriage. based on the ambarawa district attorney indictment letter no. reg. perk: pdm-63 / 0.3.42 / ep.2 / 10/2009, lutviana ulfa's father's involvement in his marriage was considered economic exploitation (article 88 of the child protection act) and facilitated the occurrence of obscene acts (290 2nd kuhp jo article 56 to -2 criminal code).44 however, the involvement of parents in underage marriages violates children's rights and conflicts with obligations as article 26 paragraph (1c) of the child protection act is not given sanctions as a legal consequence. in fact, according to hans kelsen, legal obligations and responsibilities must be done and, if not done, impose sanctions on the holders of obligations and responsibilities.45 however, sanctions for the negligence of these obligations and responsibilities are not found in the child protection act. the child protection act is limited to the transfer of obligations and responsibilities when parents cannot carry out for specific reasons. child protection from underage marriages later in the child protection act, namely the protection of children's rights, both general and specific. protection, in general, is regulated in chapter ix concerning implementation of protection, which covers protection in the religious field (articles 42-43), protection in the health sector (articles 44-47), protection in education (articles 48-54), and protection in the social field (articles 55 44 pandu lesanpura aji. review of criminal law on parental involvement in the occurrence of child marriage (case study in the ambarawa district attorney), (thesis, sebelas maret university, 2010) [unpublished]. 45 hans kelsen. general theory of law and state (bandung: nusa media, 2015). 89 | indonesian journal of law and society 58). the implementation of child protection is specifically regulated in articles 59-71b. in the context of protecting children from underage marriages, it is not found that underage marriages as part of the protection are entitled to children in general. underage marriages, aside from potentially robbing and violating children's rights in the field of public protection, also have the potential to violate children's rights in the field of special protection. in connection with special protection, this protection is given in certain situations and conditions that serve to guarantee a sense of security against threats that endanger the child and his life in development.46 there are fifteen specific situations and conditions formulated in the child protection act as part of special child protection efforts. the fifteen special protections are given to (a) children in an emergency situation; (b) children in conflict with the law; (c) children from minority and isolated groups; (d) children who are exploited economically and/or sexually; (e) children who are victims of narcotics, alcohol, psychotropic, and other addictive substances; (f) children who are victims of pornography; (g) children with hiv/aids; (h) child abducted, sold and/or trafficked; (i) child victims of physical and/or psychological abuse; (j) child victims of sexual crimes; (k) child victims of terrorism networks; (l) children with disabilities; (m) child victims of mistreatment and neglect; (n) children with deviant social behavior and (o) children who are victims of stigmatization from labeling are related to the condition of their parents.47 of the fifteen situations and conditions, underage marriages are not part of either the other articles or the explanation of the child protection act. underage marriages are vulnerable to placing children in situations that endanger them and their lives during their growth and development. situations are vulnerable to threaten children include violence, exploitation, lost opportunities to get the most extensive education, proper health, and develop themselves. 46 child protection act, supra note 1. 47 ibid. 90 | criminal law policy on the protection of children from underage marriage because special protection provides protection measures comprehensive for children, two forms of protection offered in special protection are a protection to prevent and avoid children in certain situations (preventive) and protection when children become victims, which includes healing the victim and sanctions for the perpetrator (punishment). an example is the protection of children who are exploited economically and/or sexually. preventive protection measures are carried out through efforts to disseminate and/or disseminate provisions of laws and regulations relating to the protection of children who are exploited economically and/or sexually; involving various companies, trade unions, nongovernmental organizations, and the community in eliminating economic and/or sexual exploitation of children.48 if a child has been victimized, efforts will be made to the perpetrators, namely monitoring, reporting, and giving sanctions.49 even acts of economic and / or sexual exploitation of children are specifically formulated in the criminal provisions of the child protection act.50 from the perspective of the ius constitutum, underage marriages are related to two things, first, can underage marriages qualify as a crime in the child protection act? second, can underage marriage practices that violate children's rights be enshrined in the child protection act? it turns out, besides not being classified as special protection as a right that is entitled to children, underage marriages that violate children's rights and place children in dangerous conditions are not expressly and regulated in the comprehensively child protection act. even because of the current national criminal law, there is also no explicit prohibition of underage marriages.51 the formulation of a criminal act in the criminal provisions of the child protection act separates the norms and sanctions. chapter xia on 48 ibid. 49 ibid. 50 every person who is refused, permitted, committed, ordered to do, or participated in full economic and / or sexual exploitation of children. every person who violates the provisions as referred to in article 76i, will be sentenced to a maximum of 10 (ten) years and / or a maximum fine of rp. 200,000,000.00 (two hundred million rupiah). ibid. 51 supriyadi & yulkarnain harahap, supra note 16. 91 | indonesian journal of law and society prohibition contains ten types of criminal acts which are accommodated in articles 76a-76j and sanctions regulated in articles 77-90. of the ten crimes regulated, two are relevant to underage marriages, namely violence and economic and/or sexual exploitation. the child protection act defines violence as any act against a child that results in physical, psychological, sexual, and/or neglect or suffering, including threats to commit acts, coercion, or deprivation of liberty unlawfully. the new definition accommodates the classification of violence but without the accompanying definition of each type of violence. whereas for children who get violent in marriage, it will be easier to be ensnared by law no. 23 of 2004 concerning the elimination of domestic violence (pkdrt law) because the regulation is specifically constructed to regulate violence that occurs in the scope of households. the pkdrt law provides more protection for victims than the child protection act. because the pkdrt law accommodates the rights of victims, protection of victims, and recovery of victims explicitly. even the criminal provisions regulate the types of violence in detail and provide additional crimes. unlike the pkdrt law, the child protection act, in addition to formulating violence without being accompanied by a definition of each type of violence, turns out that sanctions for each type of violence are equated. even the child protection act only provides criminal sanctions to offenders without regulating the protection of child victims as an effort to improve their physical and psychological health. the next crime related to underage marriage is exploitation, especially economic and sexual exploitation. like the regulation of violence, the child protection act only regulates the prohibition and sanction of committing criminal acts of sexual and economic exploitation. article 76i mandates that "everyone is prohibited from placing, allowing, committing, committing to do, or participating in economic and/or sexual exploitation of children." whereas in national law, the criminal act of exploiting children is a concept that has not been widely discussed, especially in the scope of criminal law. existing exploitation arrangements are not more specific in regulating the exploitation of children, especially those that occur in marriage. plus, the 92 | criminal law policy on the protection of children from underage marriage arrangements are still scattered in several laws and regulations, namely the criminal code, law no. 21 of 1997 concerning eradication of trafficking in persons (uu tppo), law no. 35 of 2014 concerning amendments to law no. 23 of 2002 concerning child protection (child protection act), law no. 10 of 2012 concerning ratification of the optional protocol to the convention on the rights of the child concerning child sales, child prostitution, and child pornography, presidential decree no. 36 of 1990 concerning the convention on the rights of the child (crc), presidential decree no. 87 of 2002 concerning the national action plan for the elimination of commercial sexual exploitation of children. of the six regulations, only the tppo law provides a definition of sexual exploitation, but the definition does not cover economic exploitation and is not specific to children in marriage. if related to explicit meaning? the exploitation that occurs in a marriage, the formulation of the most criminal offense, is article 288 of the criminal code. article 288 of the criminal code states that anyone who marries in copulation with a woman he knows or deserves must be assumed that he is not yet married if resulting in injury is threatened with a maximum of four years in prison. if someone results in serious injuries, she/he will be sentenced to a maximum of eight years in prison, and if the result of death is a maximum sentence of imprisonment of twelve years. based on these provisions, article 288 can be applied to intercourse in marriages where such marriages take place based on a dispensation from the religious courts. the result of such intercourse if there are injuries, serious injuries, until the death of women who have not been married. the things that endanger children due to underage marriages are not only intercourse that results in injury. thus, article 288 of the criminal code cannot protect children in marriage if the consequences are acts other than violence. 93 | indonesian journal of law and society b. what’s children next protection? the protection from underage marriage, as mentioned in the current child protection act, has not been fully able to protect children, including those in marriage and if it has occurred due to marriages that endanger children, such as violence and exploitation. criminal law policy is part of a criminal policy that functions to overcome crime through legal efforts (penal) aimed at achieving public welfare. talking about the upcoming criminal law policy is closely related to criminalization, namely the policy to establish an action that was not originally a criminal offense into a criminal act. central in handling crime through the means of penalties, there are two things: determining what actions should be used as a criminal offense and what sanctions should be imposed on violators. in conducting criminalization must be careful and carried out carefully. the national criminal law reform symposium formulates general criteria for criminalization, including: first, acts that will be criminalized are acts that are disliked or hated by the community because of their adverse nature, bring victims, or can bring victims. second, the cost of criminalizing is balanced with the results to be achieved, meaning that efforts ranging from rulemaking, supervision to enforcement are balanced with the legal order to be achieved. third, it does not cause overbelasting, which is an imbalance between law enforcement officers' ability and burden. fourth, the acts to be criminalized obstruct the nation's ideals and pose a danger to the whole community. based on the four criteria established by the national legal development agency, it turns out that underage marriages do not meet the criteria for criminalization. first, actions that will be criminalized are not only harmful but are also hated by the community. this becomes a dilemma for underage marriages. because some people still believe that underage marriages are not despicable even aimed at looking after children, even though some other communities do not want to because the consequences are dangerous for children and society at large. second, efforts to minimize the practice of underage marriages are still a formidable challenge, take a long time, as well 94 | criminal law policy on the protection of children from underage marriage as high costs, and are even feared to cause overbelasting. please note that the cost of crime prevention requires a large budget, and based on the fifth un congress, the costs are higher than the government administration budget. thus, j. andenaes, in barda nawawi arief reminded that basing criminal law as a concept of community protection should develop as rationally as possible, which is balanced in terms of costs and results and effectiveness in terms of criminal sanctions. according to ted honderich, a criminal is said to be an economic deterrent if it meets three conditions, namely: (1) the criminal indeed prevents; (2) the criminal does not create a more dangerous/detrimental condition than would occur if the criminal was not imposed; and (3) there is no other criminal offense that can prevent it effectively with a smaller harm/loss. third, other conditions that have not met the criteria for criminalization are criminalized acts that are contrary to the morality, religion, and morals of pancasila. in this case, underage marriages are often used to prevent pregnancy by marriage (married by accident) in children where married by accident is considered contrary to religious norms and decency. so it is not surprising that one of the posita that parents often ask for marriage dispensation is to prevent children from getting pregnant before marriage (married by accident). thus, underage marriages that occur through marriage dispensation on the grounds to avoid acts that violate religious or moral norms do not meet the criteria, as stated by barda nawawi arief. fourth, the step of criminalization is also hampered by the characteristics and principles of limiting criminal law. criminal law is a subsystem of social control facilities that are unable to overcome the problem of crime as a complex human and social problem (socio-psychological, socio-political, socioeconomic, socio-cultural, and so on). these limitations place the use of criminal law in combination with other efforts outside criminal law. someone should use other sufficient facilities that are lighter first because criminal law is inherent as the ultimate means (ultimum remedium). in addition, there are limiting principles to not regulation restrictions that do not have strong support from the public. from the things that have been described and explained above, it states that indonesia is in an underage 95 | indonesian journal of law and society marital emergency, indicating that this practice is still not supported by the community if it is used as a crime. even though marriages below still do not fulfill procedures for criminalization, the child protection act as a regulation that protects children explicitly should regulate child protection comprehensively, meaning that it protects from any actions that can endanger the rights and welfare of children. as according to peter newel, those children need protection for their existence due to: (a) costs to make a recovery due to failure to provide protection is very high. much higher than the costs incurred to obtain protection; (b) children are very influential directly and long-term for the action (action), or not doing the action (inaction) from the government or other groups; (c) children always experience gaps in the delivery of public services; (d) children do not have voting rights nor have the power of lobbying to influence government policy agendas; (e) children, in many circumstances, cannot access the protection and compliance of children's rights; (f) children are more at risk of exploitation and abuse. it is necessary to improve the child protection act in regulating child protection from underage marriages about underage marriages that can hamper child protection. there are three things related to marriage that should be formulated in the coming child protection act, including, among others. first, it includes "children with underage marriages" as a particular form of protection that children are entitled. underage marriages should be classified as special protection as a practice that is vulnerable to physical and psychological harm to children, threatening the rights of children in their growth and development because special protection protects two sides, namely preventive and repressive. preventive protection measures are intended to prevent underage marriages, minimize and avoid the harmful effects of marriages for children. preventive protection is provided through the socialization of relevant laws and regulations, education to the community, counseling, assistance, and social rehabilitation. another reason for the need for underage marriages to be part of special protection is as a guarantee of the fulfilment of children's rights in underage marriages up to 96 | criminal law policy on the protection of children from underage marriage children aged 18 (eighteen) years. even when children are victims of crime in their marriages, special protection provides repressive protection in the form of monitoring, reporting, and providing sanctions. second, set sanctions for the negligence of the obligations and responsibilities of parents towards children. in hans kelsen's view, the form of legal obligation must be followed by legal sanctions as a consequence of not carrying out that obligation. of course, sanctions, in this case, are not given just like that, as reminded by herbert l. packer to use criminal sanctions carefully and humanely. at least if the actions of parents who do not prevent underage marriages and in such marriages, the rights and welfare of children are violated. third, regulate specifically and expressly criminal offenses relevant to underage marriages. underage marriages as a dangerous practice for children are vulnerable to crime, including violence, exploitation, and child trafficking. however, these acts are not explicitly regulated in the child protection act, while regulation still creates difficulties in its enforcement. even in other criminal laws and regulations, no regulation of criminal acts in underage marriages has been found, except article 288 of the criminal code, and that article is still limited. iv. conclusion the marital dispensation is contrary to the norms of parental obligations and responsibilities to prevent underage marriages because article 26 paragraph (1c) of the child protection act involves the role of parents in preventing underage marriages. however, article 7 paragraph (2) involves the role of parents to apply for marriage dispensation so that their marriage can take place. marriage dispensation is the legality of marital irregularities that have been carried out when they do not reach the minimum limit (underage marriages) through parents' requests to the religious courts. meanwhile, the child protection act mandates to prevent underage marriages because this practice is a traditional practice that endangers children and violates children's rights. 97 | indonesian journal of law and society the criminal law policy in providing child protection from underage marriages in the perspective of the child protection act does not exist until now. protection of minors from underage marriages under the current child protection act covers: (1) preventive measures through the obligations and responsibilities of parents to prevent minors from marrying without being accompanied by sanctions, (2) children are entitled to general protection and specifically, but such protection does not cover protection from underage marriages, and (3) the criminal provisions of the child protection act do not explicitly regulate underage marriages as criminal acts. the ideal child protection policy from underage marriages in the child protection act in the future is related to criminalization. however, based on the criteria and principles of criminalization, underage marriages cannot be criminalized. the suggestion that the author proposes is, regulates the dispensation of marriage, which contains child protection in the marriage law and emphasizes the regulation of underage marriages in the child protection act as a special rule in the field of child protection. the formulation of marriage dispensation in the marriage law includes the minimum age limit for children who can be given marriage dispensation and marriage dispensation based on the best interests of the child as an effort to protect children if the marriage dispensation is granted and underage marriages occur. also, the child protection act, as a particular rule in child protection, needs to regulate underage marriages strictly and comprehensively. references barda nawawi arief. criminal law policy rampai: (development of the drafting of the new criminal code concept). (jakarta: kencana, 2010). dewi ervina suryani. "legal protection of children victims of sexual exploitation in early marriage (study of indonesian supreme court decision number 690k/pid.sus/2010)" (2015) 3: 2 usu law j 98 | criminal law policy on the protection of children from underage marriage 182hans kelsen. general theory of law and state (bandung: nusa media, 2015). heise, lj pitanguy & a germain. "violence against women: the hidden health burden." (1994) world bank wash dc 255. herbert l packer. the limits of the criminal sanction (california: stanford university press, 1968). john kenedi. penal policy in the law enforcement system in indonesia (yogyakarta: pustaka belajar, 2017). lilik mulyadi. theoretical and practical perspective criminal law interest, 1st ed (bandung: pt. alumni, 2008). maidin gultom. legal protection of children and women (medan: refika aditama, 2012). mardi candra. aspects of indonesian child protection analysis of underage marriage, first ed (jakarta: prenadamedia, 2018). nawal m nour. "child marriage: a silent health and human rights issue" (2009) 2 rev obstet gynecol 52. pandu lesanpura aji. review of criminal law on parental involvement in the occurrence of child marriage (case study in the ambarawa district attorney), (thesis, sebelas maret university, 2010) [unpublished]. plan international. "getting the evidence: asia child marriage initiative summary report" (2016) 1. santosh k mahato. "causes and consequences of child marriage: a perspective" (2016) 7: 7 int j sci eng res 700. supriyadi & yulkarnain harahap. "underage marriages in the perspective of criminal law and islamic law" (2009) 21: 3 mimb huk 599. unicef. "ending child marriage progress and prospects" 3. waluyadi. child protection law (bandung: mandar maju, 2009). 99 | indonesian journal of law and society willem van genugten jm. "human rights reference" (1994) hague neth ministry of foreign affairs 73. yusuf hanafi. the controversy of child marriage under the perspective of islamic jurisprudence, international human rights, and national law (bandung: cv mandar maju). cnn indonesia, "united nations highlights number of child marriage in indonesia," online: <https://www.cnnindonesia.com/style-life/201702 07162847-277-191868/pbb-soroti-jotal-perikah-anak-di-indonesia?>. harnas, "early marriage vulnerable school dropouts," online: harnas.co <http://www.harnas.co/2016/07/22/nikah-dini-rentan-putus-school>. hukumonline, "early marriage is judged violating girls' rights," online: hukumonline.com <http://www.hukumonline.com/berita/baca/lt543f 9219071a8/perikah-dini-invaluedlanggarhak-anak-perempuan>. independen id, "lost access because of marriage at children's age," online: <http://independen.id/read/data/479/hilang-akses-lantaranmenikahdi-usia-anak/>. kabar bisnis, "indonesia is considered a child marriage emergency," online: <http://kabar24.bisnis.com/read/20171120/15/711034/indonesia-digenerated-information-perkawinan-a>. kompas, "early marriage judged as the root of the problem of trafficking in people kompas.com," online: <https://nasional.kompas.com/read/ 2017/03/02/17562791/perkawinan.dini.dinilai.sagai.akar.masa%20 people trading. metrotvnews. "the negative impact of early marriage," online: <http://rona.metrotvnews.com/k-health/nbwebgbk-dampak-negatifperikah-usia-ini>. media indonesia. "early marriage vulnerable triggers domestic violence" (11 october 2016), online: <http://mediaindonesia.com/read/detail/ 71508-perikah-dini-rentan-picu-kdrt>. 100 | criminal law policy on the protection of children from underage marriage nuriwan trihendrawan. "indonesia ranks seven cases of child marriage", online: <https://nasional.sindonews.com/read/1254271/15/indonesiaperforming-t tujuh-kasus-perak-anak-1509711401>. voa indonesia, "child marriage practices trigger violence against women," online: voa indonesia <https://www.voaindonesia.com/a/ practical-consumption-children-picuviolence-/3628402.html>. microsoft word 4.docx indonesian journal of law and society (2021) 2:1 79-104 issn 2722-4074 | https://doi.org/10.19184/ijls.v2i1.21787 published by the university of jember, indonesia available online 03 march 2021 __________________________ * corresponding authors’ e-mail: zakypriambudi@gmail.com optimizing omnibus law in indonesia: a legal enquiry on the use of artificial intelligence for legislative drafting zaki priambudi* university of jember, indonesia namira hilda papuani university of jember, indonesia ramdhan prawira mulya iskandar university of jember, indonesia abstract: the omnibus law model is often regarded as a practical solution to harmonize and synchronize statutory regulations. in practice, the application of this model tends to be pragmatic and less democratic. this paper aimed to analyze the essential considerations and challenges of implementing the omnibus law model in indonesia and the further relevance of applying artificial intelligence (ai) in the legislation. by combining doctrinal and socio-legal research, this paper demonstrated the potential for ai in optimizing the omnibus law model legislation. the results of this study indicated that ai could not immediately replace the role of legislative institutions and only acts as a tool and not as a determinant in the legislative process. there were two ai features that could assist legislative bodies in designing the omnibus law model. they were document review as a construction scanner for legislation and predictive analytics as a prediction system. both could help legislative bodies in optimizing the omnibus law model, which tended to have a high complexity level. as a follow-up, it was expected that the government could create a special institution that focused on optimizing ai-based legislation. keywords: omnibus law, artificial intelligence, legislation, public participation. copyright © 2021 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions submitted: 05/01/2021 reviewed: 13/01/2021 revised: 15/02/2021 accepted: 17/02/2021 how to cite: priambudi, zaki et al., “optimizing omnibus law in indonesia: a legal enquiry on the use of artificial intelligence for legislative drafting” (2021) 2:1 indonesian journal of law and society 78-104. 80 | optimizing omnibus law in indonesia: a legal enquiry i. introduction economic growth requires simpler laws and regulations and the omnibus law becomes an alternative in the agenda of harmonizing laws and regulations to support the investment climate. due to the large number of contents in the omnibus law model but the lack of supporting facilities and mechanisms, most public aspirations are often not accommodated in the design process.1 whereas in democracies, public participation is crucial.2 the participation becomes an indicator in law-making for people’s interests.3 this paper aimed to analyze the basis for the government's rationalization in choosing the omnibus law model to simplify laws and regulations and their problems. then, it proceeded with an analysis of several artificial intelligence (ai) features expected to overcome these problems. especially, it dealt with the follow-up to implement ai for the omnibus law legislation. several similar studies discussed the use of ai in legislation. the first was the research conducted by eka nam sihombing and muhammad yusrizal adi syaputra. it examined the probability of ai replacing the organs that formed regional regulations juridically and theoretically.4 this research concluded that ai could not automatically replace the organs that formed regional regulations due to taking decisions requiring a more humane touch. the second observation examined the use of ai in making laws.5 it showed ai having a role in forecasting and ranking matters that later required regulation by legislation. thus, it is necessary to analyze the probability of 1 deni umbara, jum hermanto & franky ariyadi, "community pro-contra project for the presence of the omnibus law bill in legal sociology perspective" (2020) 4: 2 legal standing: jurnal ilmu hukum 168-173. 2 eko noer kristiyanto, "the urgency of the omnibus law in accelerating regulatory reform in a progressive legal perspective" (2020) 20: 2 de jure legal research journal 233–244 at 233–234. 3 muhammad fakhrur razy & muhammad fedryansyah, "conflict of civil society movement and government in the process of drafting the omnibus law bill" (2020) 2: 2 collaborative journal of conflict resolution 74–85 at 80–81. 4 eka nam sihombing & muhammad yusrizal adi syaputra, "implementation of the use of artificial intelligence in forming regional regulations" (2020) 14: 3 scientific journal of legal policy 419–434 at 419. 5 paulus wisnu yudoprakoso, "artificial intelligence as a tool for the formulation of laws in facing the industrial revolution 4.0 in indonesia" (2019) 1: 1 indonesian legal symposium 450–461 at 450. 81 | indonesian journal of law and society implementing ai in legislation to answer the problems faced in designing the omnibus law model. an analysis of the use of ai in legal practice and the use of information technology in legislation in other countries considers a need to update the method of legislation. it is because conventional legislative methods are very time-consuming.6 this study analyzed the essential considerations for selecting the omnibus law model in indonesia, the challenges of implementing the omnibus law model, and the further relevance of using ai to the omnibus law legislation. this paper is organized as follows. the first part will discuss the primary considerations for implementing indonesia's omnibus law model after the introductory section and research methods. the second part will invite readers to analyze the challenges of implementing the omnibus law in indonesia. then, the third part will discuss the relevance of implementing ai in optimizing omnibus law legislation. the last section will conclude with the following-up ideas regarding the issue. ii. methods this paper combined doctrinal and socio-legal research. doctrinal research examined policies regarding omnibus law and ai's application relating to the formation of laws both at the national and international levels.7 meanwhile, socio-legal research was used to analyze regulations and their relationship with other disciplines and other factors that influence law enforcement.8 6 wulf a kaal, “dynamic regulation for innovation” (2016) perspectives in law, business & innovation (mark fenwick, wulf a kaal, toshiyuki kono & erik pm vermeulen eds), new york springer (2016) 16–22 at 18. 7 the research was carried out by looking at existing laws, followed by considering several issues affecting the law and the political practice of the underlying law. the purpose of this method can lead researchers to initiate a change in the law. wing hong chui & mike mcconville, research methods for law (edinburgh university press edinburgh, 2007) at 20–21. 8 this research focused on the relationship between law and society as an interconnected social phenomenon. socio-legal research was characterized by a prescriptive model that offers an alternative to the prevailing regulations in society. ibid at 40–41. 82 | optimizing omnibus law in indonesia: a legal enquiry iii. basic considerations to the application of omnibus law in indonesia the law as a social engineering tool is expected to provide certainty and answers to humans' problems.9 in providing certainty and justice, the law needs to adapt to the times' increasingly complex dynamics.10 one of them is economic problems, which result in decreased population productivity. indonesia is facing stagnating economic growth in recent years. it is evidenced by indonesia's national economic growth's stagnation for the last four years, which only reached 5 percent. 11 this percentage is still far from the target set by the government.12 the slow pace of the economy led to an increase in the unemployment rate, which reached 7.05 million people per year. meanwhile, indonesia generates 2 million workers every year, and indonesia must prepare to respond to the demographic bonus starting from 2020 to 2035.13 the national development planning agency (bappenas) stated that the national economic growth target is 6 percent from 2020 to 2040. this figure estimates that every 1 percent economic growth can absorb 460,000 workers.14 it requires the government to spur the economy as optimally as possible to reach 6 percent to open jobs to accommodate the 2 million workforces each year and the existing 7.05 million unemployed people. to achieve this target, the government needs at least an investment figure of idr 4,800 trillion to estimate that every 1 percent of national economic 9 h yacob djasmani, "law as a social engineering tool in legal practice in indonesia" (2011) 40: 3 legal problems 365–374 at 365. 10 suwardi sagama, "analysis of the concept of justice, legal certainty and benefit in environmental management" (2016) 15: 1 mazahib 20–41 at 22. 11 central bureau of statistics, indonesian national income 2015-2019 (2020) at 78. 12 the government is targeting 7 to 8 percent in the 2014-2019 national medium term development plan. ministry of national development planning / national development planning agency, "national medium term development plan 20152019" (2019) national medium term development plan 2020-2024 at 4-11. 13 central bureau of statistics, "indonesian youth statistics 2019" (2019) jakarta: statistics indonesia at 4. 14 central bureau of statistics, "august 2020: open unemployment rate (tpt) of 7.07 percent", (2020), online: <https://www.bps.go.id/pressrelease/2020/11/05/1673/ august-2020 open-unemployment-rate-tpt-by-7-07-percent.html>. 83 | indonesian journal of law and society growth requires an idr 800 trillion investment. a large amount of investment requires the government to make extra efforts in inviting foreign investors.15 however, indonesia's competitiveness is relatively low when compared to other countries,16 one of the causes is the long bureaucratic chain caused by overlapping laws and regulations. at least 8,945 regulations were issued from october 2014 to october 2018, starting from the central to regional levels. on average, there are at least six regulations published every day.17 even though president joko widodo has evaluated the current bureaucratic chain several times, it focuses more on processes than tangible results relevant to more responsive government services.18 according to bappenas, overlapping laws and regulations resulted in indonesia's low competitiveness amid global competition.19 it is reflected in the results of the doing business study released by the world bank. indonesia is ranked 73rd in 2019 in terms of licensing. 20 singapore was in second place, malaysia 12th, taiwan 15th, thailand 16th, brunei darussalam 66th, and vietnam 70th.21 from these data, it concludes that indonesia is still lagging compared to neighboring countries regarding the ease of obtaining business permits. regulatory disharmony caused by overlapping laws and regulations is a significant factor in hampering the accelerated economic program's execution. as a result, various public services access, particularly efforts to open job opportunities in business convenience facilities, are hampered. in 15 national development planning agency, “ministry of national development planning," online: <https://www.bappenas.go.id/id/berita-dan-siaran-pers/rencanapembangunan-jangka-menengah-nasional-rpjmn-2020 -2024 />. 16 in 2019 indonesia was ranked 50th, down five places from 2018. klaus schwab, "the global competitiveness report 2019" (2019) world economic forum at 282. 17 center for indonesian law and policy studies (pshk), study of regulatory reform in indonesia: issues and strategies for handling them (2019) at 64–65. 18 kompas, "complete text of president joko widodo's speech in the inauguration of the 2019-2024 period jeo kompas.com", online: <https://nasional.kompas.com/ jeo/naskah-llengkap-pidato-presiden-joko-widodo-dalam-inauguration-period2019-2024>. 19 indonesian center for law and policy studies (pshk), supra note 17 at 8–10. 20 world bank (washington, district of columbia), ed, doing business 2020, doing business (washington: world bank group, 2019) at 4. 21 ibid at 4. 84 | optimizing omnibus law in indonesia: a legal enquiry this case, the government has homework to synchronize and harmonize laws and regulations. however, this process, apart from having procedural obstacles, also took a long time.22 the indonesian center for law and policy studies (pshk) found five fundamental problems in the statutory system that need to be corrected.23 first, planning laws and regulations that are not in sync with development planning. it has significant implications for the relationship between the center and the regions, which causes regional autonomy to be ineffective. for example, in mid-2016, the central government canceled 3,143 regional regulations, which were considered to be hampering regional economic growth, lengthening bureaucratic channels, and hindering investment and ease of doing business.24 second, improper charge material. many substance problems can be regulated by one statutory product. however, they are regulated in several legislative products.25 third, there is hyper-regulation. from october 2014 to october 2018, there were at least 8,945 regulations issued at the national level, starting from laws, government regulations, presidential regulations, and ministerial regulations. in sum, there are at least six regulations published every day.26 fourth, there is no monitoring and evaluation mechanism. only using one perspective of a ministry or agency can create a ministry monitoring and evaluation process that only partially and only prioritizes certain institutions' interests. it is feared that such a situation will foster a sectoral ego attitude not to solve the problem.27 fifth, functional and institutional problems. the absence of an agency with full authority to manage regulations nationally means that the authority to 22 kristiyanto, supra note 2 at 236. 23 indonesian center for law and policy studies (pshk), supra note 17 at 100–101. 24 ministry of home affairs of the republic of indonesia, "kemendagri officially announces 3,143 perda canceled", (june 21 2016), online:anno-3-143-perda cabinet secretariat of the republic of indonesia <https://setkab.go.id/kemendagri-resmi-whatcanceled/>. 25 indonesian center for law and policy studies (pshk), supra note 17 at 34–35. 26 ibid at 64–65. 27 ibid at 94. 85 | indonesian journal of law and society formulate policies and formulate these regulations is spread over the ministries or agencies.28 to overcome these various problems, pshk recommends several steps.29 first, integration of statutory planning systems with development planning. second, tightening harmonization and synchronization in controlling the process of forming the legislation. third, optimization of legislative planning that is more measurable and relevant to needs. fourth, institutionalizing the monitoring and evaluation function in the statutory regulation system. fifth, integrating functions in the statutory system through institutional arrangement and strengthening the system. in responding to the above problems, this paper finds that the omnibus law is a logical solution because it is practical and comprehensive. its substance can regulate laws and regulations that were previously split into one extensive regulation.30 louis massicotte argues that the omnibus law model can save time and shorten the legislative process. it is because legislative agencies do not need to change many laws as a whole but simply through one bill that contains many material changes from various laws.31 relevant to this view, glen s. krutz said that the omnibus law's application could prevent legal uncertainty after the formation of a law that only includes one material so that it has the potential to conflict with other laws.32 the omnibus law model can help legislative institutions reach an agreement, shorten forming a law (undang-undang) and avoid political deadlock. this model also increases legislation efficiency and increases productivity in the legislative process, facilitating efforts to harmonize laws and regulations.33 28 ministry of national development planning, “national strategy for regulatory reform: realizing simple and orderly regulations” (2015) ministry of national development planning / national development planning agency at 45. 29 center for indonesian law and policy studies (pshk), supra note 17 at 3. 30 bayu dwi anggono, "omnibus law as a law formation technique: adoption opportunities and challenges in the indonesian legislative system" (2020) 9: 1 rechtsvinding at 26. 31 louis massicotte, “omnibus law in theory and practice” (2013) 36: 1 canadian parliamentary review at 65. 32 glen s krutz & samuel c patterson, hitching a ride: omnibus legislating in the us congress (ohio state university press, 2001) at 161. 33 anggono, supra note 30 at 7. 86 | optimizing omnibus law in indonesia: a legal enquiry by harmonizing laws and regulations, indonesia is expected to invite more foreign and domestic investors to open businesses in indonesia to open more jobs. this is per the 1945 constitution, one of which is the principle of benefit. law enforcement does not result in harm but benefits to society, the nation, and the state.34 the omnibus law model is also not contradictory and remains subject to law number 12 of 2011 on legislative drafting as amended to law number 15 of 2019. the omnibus law will be positioned under article 7(1) letter c.35 then in substance, it is also under article 10(1) letter b.36 there are at least four benefits from the application of the omnibus law model in indonesia.37 first, shorten the implementation of the legislative process. second, to prevent deadlock in the deliberation of the bill in the house of representatives. third, the cost-efficiency of the legislative process. fourth, the harmonization of laws and regulations is maintained. the omnibus law model is a rational solution to overcoming overlapping laws and regulations in indonesia. moreover, indonesia is facing unprecedented global challenges, such as technological and economic disruption. the urgent situation made the government select the omnibus law model. the peak of the omnibus law's application is expected to optimize efforts to accelerate legal reform in indonesia, especially those related to harmonizing various cross-sectoral regulations at the central to regional levels. iv. the challenges of implementing the omnibus law in indonesia the omnibus law model is not a perfect system. it is not free from various criticisms. aaron wherry said that the omnibus law model is a reflection 34 mahfud md, "constitution and law in controversy over issues" (2010) rajawali pers, jakarta at 384. 35 the omnibus law's position will still be under the basic law, but its position will be higher than other legislation types. 36 the article is outlined, "... an order of a law to be regulated by law". 37 anggono, supra note 30 at 35. 87 | indonesian journal of law and society of pragmatic legal practices38 and less democratic because the omnibus law will change the norms of laws from various political initiatives.39 forming a law using the omnibus law is currently not regulated by law no. 12 of 2011. it causes bias in the design mechanism, which has the potential to result in violating the principles of forming the legislation. the synchronization of the philosophical, sociological, and juridical foundations in the omnibus law also poses its challenges, considering that each law tends to only have one subject, in contrast to the omnibus law contains many subjects. this has resulted in not being proportionally absorbed by the philosophical, sociological, and juridical foundations because each law has problems with different approaches. as part of the considerations that must be contained in a law, philosophical, sociological, and juridical foundations have an essential meaning. a law can be implemented under the principles of statutory regulations. these considerations indicate consideration of the effectiveness of the law.40 besides, the process of hearing opinions will also decrease in quantity because the legislative body has a limited deadline. in line with that, sinclair and smith also said that the omnibus law model's application would change the principle of deliberative democracy. this is because the omnibus law model often accelerates the drafting process compared to the draft bill's usual drafting.41 it reflects from the job creation bill's relatively fast deliberation process, in which the house of representatives only needs 64 sessions to discuss 1,203 articles.42 38 prioritizing results and ignoring applicable procedures. 39 mirza satria buana, "measuring the concept of omnibus law and consolidation law to harmonize indonesian legislation: a comparative approach to constitutional law" (2017) at 312. 40 maria farida indrati, responding to omnibus law as the sweep of the universe law (djokosoetono research center and department of state administrative law, universitas indonesia, 2020). 41 krutz & patterson, supra note 32 at 141. 42 cantika adinda putri, “dpr is top! 1,200 articles of omnibus law completed through 64 meetings ", online:finished-lewat-64 news <https://www.cnbcindonesia. com/news/20201006154706-4-192288/dpr-top-1200-pasal-omnibus-law-sel-times meetings>. 88 | optimizing omnibus law in indonesia: a legal enquiry in this case, the draft law also received several criticisms and protests from labor groups, academics, and students.43 it was caused by drafting the job creation bill, deemed not accountable and participatory.44 it is marked by the public's difficulty in accessing the draft and academic text of the job creation bill.45 the rapid drafting strategy amid the inadequacy of the omnibus law model's mechanism made the house of representatives unable to comprehensively review the bill, which had implications for reduced public participation.46 even though this is, of course, contrary to the provisions of the legislation-making mechanism.47 public participation in the formation of laws cannot be contested because it becomes the main spirit of democracy. public participation reflects people's sovereignty and a democratic state guaranteed by the constitution, particularly article 1(2) of the 1945 constitution. moreover, indonesia already has several laws requiring public participation in the formation of laws, such as public information disclosure law, public services law, spatial planning law, and the legislative drafting law. even the legislative drafting law specifically regulates public participation in the formation of laws.48 the violation of public participation in the making of laws does not only injure democracy but will result in legally defective products and materially. the hasty drafting process resulted in the loss of the principles of prudence, 43 razy & fedryansyah, supra note 3 at 76. muhammad bahrul ulum, “indonesian democracy and political parties after twenty years of reformation: a contextual analysis” (2020) 10:1 indonesia law review at 35. 44 komnas ham, "komnas ham: unaccountable and participatory omnibus law formulation," (january 31, 2020), online: national human rights commission komnas ham <https://www.komnasham.go.id/index.php/news /2020/1/31/1319/ komnas-ham-penyusunan-omnibus-law-tidak-akuntabel-and-participatif.html>. 45 razy & fedryansyah, supra note 3 at 80–81. 46 rizal irvan amin, “omnibus law between desiderata and reality” (2020) 15: 2 journal of ocean justice law 190–209 at 199. 47 article 94 of law no.12 of 2011 outlines, "to facilitate the public in providing input orally and/or in writing as referred to in paragraph (1), every draft laws and regulations must be easily accessible to the public". 48 kristiyanto, supra note 2 at 234. 89 | indonesian journal of law and society thoroughness, and openness. it can lead to the creation of a bad law product and has the potential to harm society.49 in practice, the omnibus law model's application also often bypasses several stages of the statutory regulation-making procedure.50 in indonesia, this happened during the drafting process of the job creation bill. at that time, the house of representatives was caught overstepping several procedures in the provisions of the house of representatives regulation number 1 of 2020 on rules of procedure. at that time, the head of the working meeting (raker) immediately formed a working committee without discussing the bill's material according to the problem inventory list (dim) sent by each faction. it violated the provisions of article 151(1),51 article 154(1),52 and article 156(1) the house of representatives' rules.53 because, at that time, it was not all factions were ready to submit dim.54 given the various problems above, the supporting facilities for designing the omnibus law model in indonesia are not ideal, appearing to impose a process in the middle of an inappropriate law formation mechanism. in addition to the amendments to the legislative drafting law, the legislative body needs a supporting facility that can function in the long term. therefore, this paper proposes using ai to improve effectiveness and efficiency in the omnibus law legislation. it is entirely rational because, in practice, ai is commonly used 49 fahmi ramadhan firdaus, "prevention of legislation corruption through strengthening public participation in the process of forming a law" (2020) 17: 3 indonesian legislation journal 282–293 at 290. 50 vincent suriadinata, "formulation of laws in the investment sector: study of the formation of omnibus law in indonesia" (2019) 4: 1 reflection on law: journal of legal studies 115–132 at 121–122. 51 the working committee's draft bill's discussion occurs after a working meeting between the commissions, joint commissions, the legislative body, the special committee, the budget agency, and the ministers representing the president. 52 a working meeting was held to discuss all the bill's contents according to the problem inventory list (dim) of each faction in the house of representatives or the board of regional representatives if the draft law discussed relates to its authority. 53 a general hearing meeting was held to obtain input on the draft law being discussed. 54 indonesian center for law & policy studies, "discussion of the omnibus bill on job creation directly to the panja: trimmed participation, regulations willed", (20 april 2020), online: pshk.or.id <https://pshk.or.id/publikasi / discussion-omnibuscopyright-work-direct-to-panja-participation-trimmed-order-cutting-edge />. 90 | optimizing omnibus law in indonesia: a legal enquiry as a detection and prediction system,55 then ai can help legislative bodies and the public to evaluate the available data in drafting laws and assessing the implications of future legal rules.56 v. relevance of the implementation of artificial intelligence for the omnibus law drafting a. the use of information technology in legislations in other countries it is unrealistic for legislative bodies to accept most of the public's input into modeling the omnibus law. given that the omnibus law model is identical to the number of articles and subjects that tend to be more than ordinary laws. it is a logical consequence of the limited time for discussion and the urgent need for the implications and harmonization of laws and regulations. one alternative that can be considered is to use information technology in the field of legislation. in other countries, the use of information technology in the making of legislation has been widely adopted. the netherlands has adopted internetbased consultation since 2009. the ministry of justice and security initiated the adoption by publishing the bill that is being drafted, including the bill's implications on the website for 12 weeks, and anyone can give their aspirations to the bill.57 the model is also run by australia, denmark, canada, and the uk. 58 it is deemed necessary to be implemented in indonesia. thus, this paper proposes the use of ai in legislation. one of the reasons is that ai can be integrated with various public services, making it easier for legislative bodies to obtain data-based considerations in a shorter 55 bernard marr, "how ai and machine learning are transforming law firms and the legal sector," online: forbes <https://www.forbes.com/sites/bernardmarr/2018/ 05/23/how-ai-and-machine-learning-are-transforming-law-firms-and-the-legalsector />. 56 kaal, supra note 6 at 13. 57 organization for economic co-operation and development (oecd), "better regulation in the netherlands” (2009) european commission 112 at 64. 58 akhmad adi purawan, "corruption of legislation in the formation of legislative regulations" (2014) 3: 3 rechtsvinding: media of national law development 347– 363 at 361. 91 | indonesian journal of law and society and more accurate so that the law products produced are under the community's needs.59 in addition, indonesia can apply internet-based consultation as it has been implemented in the netherlands.60 the website can be integrated with ai so that data analysis of public aspirations can be carried out in a more comprehensive, which has implications for increased public participation in legislation. it certainly increases the essence of democracy, namely the high level of public participation in law and policymaking. 61 b. ai’s role in law enforcement in other countries china and america are two examples of countries that present technological trends in the legal field. in china, models of the smart court system have emerged. several typical applications include case analysis types, automated judgments, standard-setting of evidence, and systems for profiling judges.62 china has adopted and implemented several national strategies to deal with technological developments in the industrial revolution 4.0, especially ai. under the central government's command, examples of programs that have proven successful include the case management system in guiyang, the intelligent criminal case handling system in shanghai, the internet court in hangzhou, and the smart court in suzhou.63 in america, the ai technology applied in the legal field is very welcome by lawyers. some of the application areas include legal research, predictive 59 slava jankin mikhaylov, marc esteve & averill campion, “artificial intelligence for the public sector: opportunities and challenges of cross-sector collaboration” (2018) 376: 2128 philosophical transactions of the royal society a: mathematical, physical and engineering sciences, online: <https://royalsocietypublishing.org/doi/full/ 10.1098/rsta.2017.0357> at 2–3. 60 organization for economic co-operation and development (oecd), supra note 57 at 64. 61 frank fagan & saul levmore, “the impact of artificial intelligence on rules, standards, and judicial discretion” (2019) 93 southern california law review 1 at 1. 62 ran wang, “legal technology in contemporary usa and china” (2020) 39 computer law & security review at 2. 63 ibid. 92 | optimizing omnibus law in indonesia: a legal enquiry analysis, automated contract review, and e-discovery.64 jpmorgan uses the ai contract intelligence (coin) program, which has been used since june 2017 to interpret commercial loans. work that previously took 360,000 hours can now be completed in seconds.65 some ai platforms, such as the kira system, allow lawyers to identify, extract and analyze business information in large volumes of contract data. because ai can analyze more data, ai can perform better than lawyers in predicting the outcome of disputes and legal proceedings and assisting clients in making decisions.66 c. the potential for application of ai for the legislation according to frank fagan and saul levmore, ai can provide more significant benefits to legislative institutions, especially the house of representatives, in reducing the potential for errors in the legislative process.67 ai can also assist legal practitioners in analyzing the weaknesses and strengths of legal documents. the law-making and judgments algorithm will take advantage of a model built from a large store of data, allowing for the careful application of rules. legal experts are also expected to collaborate with ai in drafting laws and regulations. collectively, ai can help legal experts apply and create laws that suit society's conditions more optimally.68 the use of ai as a tool for the omnibus law legislative body is rational because the omnibus law model tends to have a high complexity level. also, the collaboration between humans and machines is not new, especially in legal practice.69 64 harry surden, “artificial intelligence and law: an overview” (2019) 35: 4 georgia state university law review 19–22 at 1328–1330. 65 w bradley wendel, “the promise and limitations of artificial intelligence in the practice of law” (2019) 72:21 oklahoma law rev 21–49 at 24. 66 wang, supra note 69 at 7–8. 67 fagan & levmore, supra note 61 at 1. 68 wang, supra note 69 at 7. 69 fagan & levmore, supra note 61 at 3. 93 | indonesian journal of law and society d. can artificial intelligence replace organs? there is still debate about the use of ai in formulating laws and policies.70 this paper finds that ai cannot immediately replace the law-forming organs. until now, there are no countries that have implemented ai as part of the law-making organ. it is based on several reasons.71 first, the legislative product crystallizes norms derived from legal principles, namely values and beliefs that live in a society, applied to that community.72 second, the nature of the legislative product has a relational characteristic of compromise law. the law must be built through compromises on different views in achieving justice built through dialectics so that only the legislative organs can interpret this.73 third, as stated by stephen hawking. ai can have a negative impact because, in the short term, ai still requires control from one party.74 thus, it is feared that the resulting law product will no longer be a legal product containing the people's aspirations but a set of laws based only on specific groups' interests.75 the legislative process refers to the legislative and the parliament laws for which ai can be used in the legislative process, starting from the planning process to prepare to level i talks.76 later the output ai can be used as a 70 cynthia rudin, "stop explaining black-box machine learning models for high stakes decisions and use interpretable models instead" (2019) 1: 5 nature machine intelligence 206–215 at 210. 71 sihombing & syaputra, supra note 4 at 430–431. 72 winarno yudho & heri tjandrasari, “legal effectiveness in society” (2017) 17: 1 journal of law & development 57–63 at 58–60. 73 it can only be obtained through human touch. see: al andang l binawan & al andang, "tracing the logic of legislation" (2005) 10: 3 jentera journal at 9. 74 stephen hawking et al., transcendence looks at the implications of artificial intelligencebut are taking ai seriously enough (the independent, 2014). 75 sihombing & syaputra, supra note 4 at 431. 76 level i discussion is a further discussion of the draft law in a plenary session. if the president submits the bill in level i talks, it will be the president or minister sent to explain the bill. meanwhile, if the house of representatives proposes the bill, further explanation will be made in a commission meeting, joint commission meeting, or special committee meeting. see article 169 letter a of law no. 17 of 2014 on parliament law. 94 | optimizing omnibus law in indonesia: a legal enquiry consideration to be considered in decision-making at level ii talks.77 ai can only act as a "tool" and not a "determinant" in forming laws. several ai features can assist their role in the legislation process, namely documentreview and predictive-analytics. 1. document review the omnibus law's preparation is undoubtedly inseparable from scanning legal documents, laws and regulations, and jurisprudence to doctrine. moreover, the omnibus law contains more substance than ordinary laws. even done conventionally, it will certainly take much time. besides that, human errors also often occur.78 using ai, these errors can be reduced, and the process can be carried out more effectively and efficiently.79 american company "lawgeex" announces artificial intelligence victory over lawyers in a competition over-analysis of contract terms and issues.80 the ai program owned by lawgeex can do logical reasoning based on the available data set. the program can beat lawyers with experience in cognitive and problem-solving abilities.81 it proves that ai can do analytical work better than humans. ai can classify and trace the relationship between laws and regulations and then provide detailed reports to users.82 thus, technical 77 level ii talks are discussions of the bill preceded by an explanation from the leadership, followed by a general view of the factions concerned. in level ii talks, discussions will be held containing: (a) submission of reports containing the process, opinion of the factions, the opinion of the dpd, as well as the results of the talks that have been conducted at the level i talk; (b) each faction and members of the house of representatives can provide a statement of approval or rejection of the proposed bill, and submitted orally; and (c) the president provides the final opinion conveyed by the minister who has been assigned. 78 ardila syakriah & budi sutrisno, "'fatal' errors found as job creation law enters into force," online: the jakarta post <https://www.thejakartapost.com/news/2020/ 11/03/fatal-errors-found -as-job-creation-law-enters-into-force.html>. 79 rishi chhatwal et al., explainable text classification in legal document review a case study of explainable predictive coding (ieee, 2018) at 1905. 80 oleg metsker et al., "russian court decisions data analysis using distributed computing and machine learning to improve law-making and law enforcement" (2019) 156 procedia computer science 264–273 at 266. 81 harry surden, “computable contracts” (2012) 46 ucd law review 629 at 646. 82 chhatwal et al., supra note 86 at 1907. 95 | indonesian journal of law and society errors in legislation can be avoided, considering that the recent episodes have shown that there are still some technical errors in the omnibus law legislation process.83 2. predictive analytics with the suitable formulation, ai can proportionally analyze data from various parties, which will later assist legislative bodies in making laws. it is because the law will run effectively if the regulations are measured accurately.84 besides, ai's ability to predict and formulate laws is claimed to be superior to humans.85 because when referring to conventional methods, the law will always be left behind with emerging innovations. the product of the law in the deliberation process takes months to years. even when a law product has been enacted, often the law cannot accommodate or expires in substance.86 through predictive analytics, ai can briefly and accurately project the implications of law based on the massive data available.87 the proof of this claim is the lex machina program. the ai program can analyze thousands of patent litigation from various fields. then generate yield predictions and model a new, better patent design.88 besides, after the bill is uploaded on the legislative body's website, the public can analyze the bill's origin more comprehensively; ai can cluster various indicators precisely in a relatively short time. 89 83 kuswandi, "jawapos.com," (november 03, 2020), online: creation government admits technical errors in the joblaw <https://www.jawapos.com/nasional/03/11/2020/ pemerintah-akui-kesalahan-teknis -in-uu-copyright-work />. 84 fagan & levmore, supra note 61 at 1. 85 ibid at 31. 86 ja barefoot, “disrupting fintech law” (2015) 18: 2 fintech law reporter 1–18 at 10. 87 surden, supra note 71 at 1314–1316. 88 john o mcginnis & russell g pearce, “the great disruption: how machine intelligence will transform the role of lawyers in the delivery of legal services” (2019) actual problems in economics & law at 3053. 89 ibid at 3051–3055. 96 | optimizing omnibus law in indonesia: a legal enquiry ai can also make decisions faster than humans.90 in this case, ai can make risk analysis more effective and efficient.91 besides, this ai can analyze various factors and can develop itself from time to time based on the ongoing learning process.92 ai capabilities are considered significant help to legislators' performance in creating more effective and efficient legal products.93 with the use of ai technology in the legislative process, it is expected that each draft of the omnibus law can show a more comprehensive basis for consideration. in this case, this does not mean that ai will completely replace humans because the combination of humans and ai will be superior to relying on only one of them.94 ai and humans can collaborate to create a better life order through participatory and measurable legal formulation. vi. conclusion economic considerations are the government's main foothold in implementing the omnibus law model. overlapping laws and regulations are a significant obstacle in increasing the rate of economic growth in indonesia. the application of the omnibus law model is also considered a practical solution. on the other hand, the omnibus law model is considered a pragmatic and less democratic law practice. the inadequacy of the legislative mechanism and the house of representatives' relatively fast deliberation has implications for decreasing public participation. ai can be considered an effort to optimize omnibus law legislation's effectiveness and efficiency. ai's role is only a "tool" and not a "determinant" in omnibus law legislation. besides, so far, no country has used ai in formulating laws and policies. 90 denindah olivia, "legal aspects of artificial intelligence on automated decision-making in indonesia" (2020) 7: 3 lentera hukum 301 at 304. 91 gang kou et al., "machine learning methods for systemic risk analysis in financial sectors” (2019) 25: 5 technological and economic development of economy 716–742 at 725–726. 92 peter flach, machine learning: the art and science of algorithms that make sense of data (london: cambridge university press, 2012) at 3. 93 harry surden, “machine learning and law” (2014) 89 washington law review 87– 115 at 105. 94 fagan & levmore, supra note 61 at 5. 97 | indonesian journal of law and society as a follow-up to ai application in legislation, this paper recommends forming a particular institution that focuses on legislation formation. the organization recommends it for economic co-operation and development, such as the national regulatory control council in germany and the administrative board for administrative burdens in the netherlands. later this institution will be responsible for developing ai to optimize the omnibus law legislation in indonesia. references amin, rizal irvan, “omnibus law between desiderata and reality” (2020) 15: 2 journal of ocean justice law 190–209. anggono, bayu dwi, "omnibus law as a law formation technique: adoption opportunities and challenges in the indonesian legislative system" (2020) 9: 1 rechtsvinding. barefoot, ja, “disrupting fintech law” (2015) 18: 2 fintech law reporter 1–18. binawan, al andang l & al andang, "tracing the logic of legislation" (2005) 10: 3 jentera journal. buana, mirza satria, "measuring the concept of omnibus law and consolidation law for harmonization of indonesian legislation: a comparative approach to constitutional law" (2017). center for indonesian law and policy studies (pshk), study of regulatory reform in indonesia: issues and strategies for handling them (2019). central bureau of statistics, "august 2020: open unemployment rate (tpt) of 7.07 percent", (2020), online: <https://www.bps.go.id/ pressrelease/2020/11/05/1673/ august-2020 open-unemploymentrate tpt by-7-07-percent.html>. central bureau of statistics, “2019 indonesian youth statistics” (2019) jakarta: central bureau of statistics. central bureau of statistics, indonesian national income 2015-2019 (2020). 98 | optimizing omnibus law in indonesia: a legal enquiry čerka, paulius, jurgita grigienė & gintarė sirbikytė, “liability for damages caused by artificial intelligence” (2015) 31: 3 computer law & security review 376–389. chhatwal, rishi, et al., explainable text classification in legal document review a case study of explainable predictive coding (ieee, 2018). chui, wing hong & mike mcconville, research methods for law (edinburgh university press edinburgh, 2007). djasmani, h yacob, "law as a social engineering tool in legal practice in indonesia" (2011) 40: 3 legal problems 365–374. donahue, lauri, “a primer on using artificial intelligence in the legal profession” january 03, 2018. fagan, frank & saul levmore, “the impact of artificial intelligence on rules, standards, and judicial discretion” (2019) 93 southern california law review 1. fenwick, mark, wulf a kaal & erik pm vermeulen, “regulation tomorrow: what happens when technology is faster than the law?” (2016) ssrn journal, online: <http://www.ssrn.com/abstract= 2834531>. firdaus, fahmi ramadhan, "prevention of legislative corruption through strengthening public participation in the process of forming a law" (2020) 17: 3 indonesian legislation journal 282–293. flach, peter, machine learning: the art and science of algorithms that make sense of data (london: cambridge university press, 2012). hawking, stephen et al., transcendence look at the implications of artificial intelligence-but are taking ai seriously enough (the independent, 2014). indonesian center for law & policy studies, "discussion of the omnibus bill on job creation directly to the panja: trimmed participation, regulations willed", (20 april 2020), online: pshk.or.id <https://pshk.or.id/publikasi/discussion-omnibus-copyright-workdirect-to-panja-participation-trimmed-order-cutting-edge />. 99 | indonesian journal of law and society kaal, wulf a, “dynamic regulation for innovation” (2016) perspectives in law, business & innovation (mark fenwick, wulf a kaal, toshiyuki kono & erik pm vermeulen eds), new york springer (2016) 16–22. kemp, richard, “legal aspects of artificial intelligence” (2016) 2 kemp it law. komnas ham, "komnas ham: unaccountable and participatory omnibus law preparation," (january 31, 2020), online: national commission on human rights-komnas ham <https:// www.komnasham.go.id/index.php/ news / 2020/1/31/1319 / komnasham-drafting-omnibus-law-not-accountable-and-participatory.html>. kompas, "complete text of president joko widodo's speech in the inauguration of the 2019-2024 period jeo kompas.com", online: <https://nasional.kompas.com/jeo/naskah-l lengkap-pidato-presidenjoko-widodo-dalam inauguration-period-2019-2024>. kou, gang, et al., "machine learning methods for systemic risk analysis in financial sectors" (2019) 25: 5 technological and economic development of economy 716–742. kristiyanto, eko noer, "the urgency of the omnibus law in the acceleration of regulatory reform in a progressive legal perspective" (2020) 20: 2 de jure legal research journal 233–244. krutz, glen s & samuel c patterson, hitching a ride: omnibus legislating in the us congress (ohio state university press, 2001). kuswandi, "jawapos.com," (november 03, 2020), online: government admits technical errors in the job creation law <https://www.jawapos.com/nasional/03/11/2020/pemerintah-akuikesalahan-teknis -in-uu-copyright-work />. maria farida indrati, responding to omnibus law as the sweep of the universe law (djokosoetono research center and department of state administrative law, universitas indonesia, 2020). marr, bernard, "how ai and machine learning are transforming law firms and the legal sector," online: forbes <https://www.forbes. 100 | optimizing omnibus law in indonesia: a legal enquiry com/sites/bernardmarr/2018/05/23/how-ai-and-machine-learningare-transforming-law-firms-and-the-legal-sector/>. massicotte, louis, “omnibus law in theory and practice” (2013) 36: 1 canadian parliamentary review. mcginnis, john o & russell g pearce, “the great disruption: how machine intelligence will transform the role of lawyers in the delivery of legal services” (2019) actual problems in economics & law. md, mahfud, “constitution and law in controversial issues (2010) rajawali pers, jakarta. metsker, oleg, et al., "russian court decisions data analysis using distributed computing and machine learning to improve lawmaking and law enforcement" (2019) 156 procedia computer science 264–273. mikhaylov, slava jankin, marc esteve & averill campion, “artificial intelligence for the public sector: opportunities and challenges of crosssector collaboration” (2018) 376: 2128 philosophical transactions of the royal society a: mathematical, physical and engineering sciences, online: <https://royalsocietypublishing.org/doi/full/10.1098/rsta.2017.0357>. ministry of home affairs of the republic of indonesia, "kemendagri officially announces 3,143 perda canceled", (june 21, 2016), online: cabinet secretariat of the republic of indonesia <https://setkab.go.id/ kemendagri-resmianno-3-143-perda -what-canceled />. ministry of national development planning, “national strategy for regulatory reform: realizing simple and orderly regulations” (2015) ministry of national development planning / national development planning agency. ministry of national development planning, "national medium term development plan 2015-2019" (2019) national medium term development plan 2020-2024. national development planning agency, “ministry of national development planning," online: <https://www.bappenas.go.id/id/ 101 | indonesian journal of law and society berita-dan-siaran-pers/rencana-pembangunan-jangka-menengahnasional-rpjmn-2020 -2024 />. olivia, denindah, “legal aspects of artificial intelligence on automated decision-making in indonesia” (2020) 7: 3 lentera hukum 301. organization for economic co-operation and development (oecd), "better regulation in the netherlands" (2009) european commission 112. pagallo, ugo, the laws of robots (dordrecht: springer netherlands, 2013). purawan, akhmad adi, "corruption of legislation in the formation of legislative regulations" (2014) 3: 3 rechtsvinding: media of national law development 347–363. putri, cantika adinda, “dpr top! 1,200 articles of omnibus law completed through 64 meetings", online: news <https://www. cnbcindonesia.com/news/20201006154706-4-192288/dpr-top-1200pasal-omnibus-law-sel finished-lewat-64 -times meetings>. razy, muhammad fakhrur & muhammad fedryansyah, "conflict of civil society movement and government in the process of drafting the omnibus law bill" (2020) 2: 2 collaborative journal of conflict resolution 74–85. rudin, cynthia, "stop explaining black-box machine learning models for high stakes decisions and use interpretable models instead" (2019) 1: 5 nature machine intelligence 206–215. sagama, suwardi, "analysis of the concept of justice, legal certainty and benefit in environmental management" (2016) 15: 1 mazahib 20–41. schwab, klaus, "the global competitiveness report 2019" (2019) world economic forum. sihombing, eka nam & muhammad yusrizal adi syaputra, "implementation of the use of artificial intelligence in forming regional regulations" (2020) 14: 3 scientific journal of legal policy 419–434. 102 | optimizing omnibus law in indonesia: a legal enquiry surden, harry, “artificial intelligence and law: an overview” (2019) 35: 4 georgia state university law review 19–22. ———, “computable contracts” (2012) 46 ucd l rev 629. ———, “machine learning and law” (2014) 89 wash l rev 87–115. suriadinata, vincent, "formulation of laws in the investment sector: study of the formation of omnibus law in indonesia" (2019) 4: 1 reflection on law: journal of legal studies 115–132. syakriah, ardila & budi sutrisno, "'fatal' errors found as job creation law enters into force," online: the jakarta post <https://www. thejakartapost.com/news/2020/11/03/fatal-errorsfound-as-jobcreation-law-enters-into-force.html>. ulum, muhammad bahrul, “indonesian democracy and political parties after twenty years of reformation: a contextual analysis” (2020) 10:1 indonesia law review. umbara, deni, jum hermanto & franky ariyadi, “community pro-contra project for the presence of the omnibus law bill in legal sociology perspective” (2020) 4: 2 legal standing: jurnal ilmu hukum 168-173. vereinte nationen, ed, united nations convention on the use of electronic communications in international contracts (new york: united nations, 2007). wang, ran, “legal technology in contemporary usa and china” (2020) 39 computer law & security review. wendel, w bradley, “the promise and limitations of artificial intelligence in the practice of law” (2019) 72:21 oklahoma law rev 21–49. world bank (washington, district of columbia), ed, doing business 2020, doing business (washington: world bank group, 2019). yudho, winarno & heri tjandrasari, “legal effectiveness in society” (2017) 17: 1 journal of law & development 57–63. 103 | indonesian journal of law and society yudoprakoso, paulus wisnu, "artificial intelligence as a tool for the formulation of laws in facing the industrial revolution 4.0 in indonesia" (2019) 1: 1 indonesian legal symposium 450–461. 104 | optimizing omnibus law in indonesia: a legal enquiry this page intentionally left blank indonesian journal of law and society (2023) 4:1 95-126 issn 2722-4074 | doi: 10.19184/ijls.v4i1.38486 published by the university of jember, indonesia available online 31 marh 2023 freedom of contract: the indonesian court's decisions on internasional bussiness disputes moh.ali* university of jember, indonesia bhim prakoso university of jember, indonesia abstract: the presence of free trade zone and the increase in cross-border trade, have led to a significant increase in transnational legal relations. as a result, international contracts have become more common, and the principles of freedom of contract, including the freedom to choose the law and forum, have become increasingly important. freedom of contract is a universal principle. almost all countries in the world recognize it as a fundamental principle in contracts, including in international business contracts. this principle recognizes that contracts made by the parties act as laws for those compiling them. however, there is still a lack in consistency among indonesian judges in their interpretation of the choices of law and forum in international contracts. this study examined the raison d’ etre of different views and decisions of indonesian judges in interpreting the choice of law and the choice of forum, and its implication on the principle of legal certainty in international business disputes. through the normative legal research elaborated through a case study, this research finds that the views of some indonesian court judges deviate from the principle of freedom of contract where the law chosen by the parties is based on the considerations of the principle of effectiveness besides focusing on the nature of the case handled. thus the decision can be executable. the court may need to balance the principle of freedom of contract with other important considerations in order to arrive at a fair decision. keywords: freedom of contract, interpretation, choice of law and forum, international business disputes. copyright © 2023 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 20/02/2023 reviewed: 25/02/2023 accepted: 27/03/2023 *corresponding author’s e-mail: ali.fh@unej.ac.id how to cite: ali, moh & bhim prakoso, “freedom of contract: the uncertainty of indonesian court's decisions on internasional bussiness disputes” (2023) 4:1 indonesian journal of law and society 95-126, online: <https://doi.org/10.19184/ijls.v4i1.38486>. mailto:ali.fh@unej.ac.id 96 | indonesian journal of law and society i. introduction the continous increase of the formation of free trade zones and cross border trade has encouraged the enhancement of transnational legal relations.1 to reunite the interests of the parties, to come to a shared understanding of the substance of the agreement, the legal relationship is bound by an agreement in a cross-border context.2 contracts or agreements are one of human rights.3 contracts or agreements are one of the embodiments of the principle of freedom of contract. atiyah referred to freedom of contract as "(it) is one of the most fundamental features of the law of contract".4 freedom to contract according to sutan remi sjahdeini. is a freedom to make or not make agreements, freedom to choose which party to contract with, freedom to determine or choose the cause of the agreement, freedom to determine the object of the agreement, freedom to use the form of the agreement, free to accept or deviate from statutory provisions that are optional (aanvullend, optional).5 huala adolf stated that the freedom to contract covers a wide range of aspects including the freedom to choose the resolution of disputes that occur, choose the forum (choice of forum) for resolving business disputes and determine the law used in the agreement to be made (choice of law).6 1 anayochukwu basil chukwu, tobechi agbanike & lasbrey anochiwa, “african continental free trade area (afcfta) agreement and the mega-regional trade agreements (mrtas): what are the underlying challenges and prospects for africa-south-south trade?” (2021) 9:5 jes 414 2 huala adolf, hukum transaksi bisnis transnasional (bandung: keni media, 2020) at 2. 3 p j aronstam, consumer protection, freedom of contract, and the law (cape town: juta, 1979) at 1. 4 p s atiyah, law and modern society, 2nd ed ed (oxford ; new york: oxford university press, 1995) at 7. 5 sutan remy sjahdeini, kebebasan berkontrak dan perlindungan yang seimbang bagi para pihak dalam perjanjian kredit bank di indonesia, cet. 1 ed (jakarta: grafiti, 2009) at 54. 6 huala adolf, hukum perdagangan internasional, prinsip prinsip dan konsepsi dasar (bandung: rajawali press, 2004) at 43. 97 | indonesian journal of law and society in the current era of globalization, contractual relations do not only occur between domestic parties but also often occur between domestic and foreign parties. in other words, the freedom to choose with whom to contract is not only limited to parties within one country, but also those originated from abroad with different nationalities. legal relations between legal subjects between countries cannot be avoided along with the development of the globalization era.7 globalization causes the dynamics of law which enables the convergence of the legal order (legal order) or legal system.8 contracts where one of the parties is foreign or of a different nationality are, referred to as international contract.9 contracts with an international dimension occur mainly in business contracts. contracts in which one of the parties has differences in nationality are of course included in contracts that contain foreign elements or elements. it is possible to use the law of the country of one of the parties' origin.10 naturally, this kind of contract can raise legal issues over the law chosen by the parties (choice of law) as well as related to the dispute resolution forum (choice of forum). 11 the occurrence of legal relations in international business contracts is a manifestation of the dynamics of a global society. such globalization 7 misbahul ilham, bhim prakoso & ermanto fahamsyah, “compensation arrangements in expropriating goods and equipment: an indonesian experience” (2020) 1:2 indonesian journal of law and society 199–218. 8 saeid rabiei majd, “globalization impact on the states sovereignty and the development of international law on petroleum contracts” (2017) 66 journal of law, politic and globalization 187. 9 bing yusuf & liliana tedjosaputro, “dispute resolution for international contract to achieve legal certainty” (2017) 14:5 international journal of business, economics and law 169. 10 cindy g buys, “the arbitrators’ duty to respect the parties’ choice of law in commercial arbitration” (2005) 79:1 st john’s law review 65. 11 rizky amaliaa & fairuz zahirah zihni hamdanb, “the limitation in choice of law and choice of forum within international business contract” (2023) 6:3 international journal of social science research and review 147. 98 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes must be balanced with the dynamics of the legal aspects that govern it. according to atiyah's legal dynamics occurred due to 3 (three) conditions, namely, a. it is necessary in order to keep pace with rapid social, economic and technological changes; b. it is important to mitigate changes in value systems within society; and c. legal construction makes law has a constant need that allows it to be continuously developed, improved and adjusted.12 for legal experts who adhere to comparative functionalism, they argue that the concept of unification and harmonization of law is something desirable and inevitable in a legal order. freedom of contract of the parties has become a common law principle that recognizes the right of individuals and businesses to enter into contracts freely.13 freedom of contract is also recognized in most legal systems around the world, namely the common law system, civil law, and socialist countries, and has been adopted as fundamental principle of private law. in trading practices, business people make the contractual freedom of the parties to determine business rules that apply as a principle that has crystallized into habits, giving rise to the lex mercatoria doctrine.14 lex mercatoria is a doctrine which recognizes that international trade often involves parties from different countries with different legal systems, and that the rules of law that emerge from international business practices can serve as a source of authority in resolving international business disputes.15 however, the lex mercatoria is not 12 atiyah, supra note 3 at 171–177. 13 tedoradze irakli, “the principle of freedom of contract, pre-contractual obligations legal review english, eu and us law” (2017) 13:4 esj 62. 14 sixto sánchez lorenzo, “choice of law and overriding mandatory rules in international contracts after rome i” in petar sarcevic et al, eds, yearbook of private international law (sellier – de gruyter, 2011) 67. 15 deli bunga saravistha, “eksistensi lex mercatoria dalam praktik kontraktual dan penyelesaian sengketa lintas negara anggota pbb” (2022) 5:1 jurnal ilmiah raad kertha 64– 75. 99 | indonesian journal of law and society a formal legal system with its own courts and enforcement mechanisms. rather, it is a set of informal rules and practices that have developed through the commercial interactions and agreements of parties engaged in cross-border trade. the principle of good faith and freedom of contract has become a universal business principle sourced from the doctrine of lex mercatoria. several international conventions that produce model law, both hard and soft law, tend to accept the principle of freedom of contract of the parties, among others: a. the 1980 united nations convention on contracts for the international sale of goods (cisg), b. unidroit principles of international commercial contracts (upicc) 2010 and c. uncitral model law on international commercial arbitration 1985.16 the freedom to contract in choosing the law and choosing the forum for dispute resolution has become a general and universal principle. however,.at the implementation level when a conflict occurs between the parties and is submitted to the court, there are different views from the judge hearing the case. indonesian court judges often have different views in deciding cases.17 this difference of opinion revolves around the views of judges at the court of first instance and appellate level (judex factie) as well as at the cassation level (judex juris) in determining the authority to adjudicate a case filed as a result of a dispute based on a contract or international agreement which contains clauses on the choice of law and choice of law forum. in a case where there is a choice of law clause which stipulates foreign law, but the indonesian court judge declares that they accepts the case 16 moh ali & agus yudha hernoko, “characteristics of party autonomy in a transnational electronic consumer contract” (2019) 35:1 yuridika 55. 17 agung sujati winata, “ketidakpastian hukum dalam penyelesaian sengketa bisnis internasional melalui arbitrase internasional di indonesia” (2023) 3:1 ilr 89–98. 100 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes filed and is authorized to adjudicate. on the other hand, several indonesian judges are still guided by the fact that the applicable law is the law that has been chosen by the parties in accordance with the clauses in the contracts made. in addition, there are judges who argue that the choice of law is different from the choice of forum. however,there are those who argue that the choice of law automatically determines the choice of forum. the implication of the different views of indonesian court judges in deciding this case has resulted in legal uncertainty in law enforcement in many cases, especially in the international business law traffic. this is certainly counter-productive in interpreting the application of the principle of freedom of contract which is upheld as stated in the provisions of article 1338 bw that agreements made by the parties apply as laws for the parties who make them. article 1338 bw, which is part of book iii of bw, adheres to an open system, meaning that it gives freedom to the parties to regulate their own patterns of legal relations.18 based on the background above, research related to the views of judges in indonesia in deciding cases and interpreting the freedom of contracts of the parties in making choices and choosing forums remains merit furher study. therefore in this study is guided by the following research question: ''why do indonesian judges have different views on the application of the principle of freedom of contract even though the parties have firmly determined the choice of law and the choice of the forum within the contract?'' 18 agus yudha hernoko, hukum perjanjian, asas proporsionalitas dalam kontrak komersial (yogyakarta: laksbang grafika, 2008) at 94. 101 | indonesian journal of law and society ii. methods the research method used in this study is normative legal research, a study that focuses on authoritative legislation and court decisions regarding the views of indonesian judges in addressing international agreements that contain clauses on the choice of law or choice of forum. the approach used in this study is the statutory regulation approach, where it does not depart from the rule of law regarding the use of legal options and the choice of forum in contracts. the concept approach is inseparable from the analysis of the use of concepts, doctrines, the principle of freedom of contract, the principle of independence of judges in deciding, and the concept used as customary law in international trade. while the case approach is used to examine the judge's considerations (ratio decidendi) to arrive at a decision. the theory used as an analytical knife is the theory of legal certainty. the theory of legal certainty has also become a fundamental principle in international trade law that requires laws and legal rules to be clear, precise, and predictable, and that individuals and businesses should be able to rely on the law to guide their conduct, make informed decisions, and resolve disputes.19 practically, this theory is used as a touchstone for examining the decisions of indonesian judges in adjudicating cases in which there are international agreements. 19 elina paunio, “beyond predictability – reflections on legal certainty and the discourse theory of law in the eu legal order” (2009) 10:11 german law journal at 1472. 102 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes iii. freedom of contract as a fundamental principle freedom of contract as a basic principle20 and fundamental in contractual relations that have an international dimension has implications for the issue of freedom in choosing the law and the freedom to choose the forum for resolving disputes. choice of law is a national law of a particular country chosen by the parties to the contract they make.21 the choice of law usually occurs between legal subjects from different countries. the parties to a cross-border transaction may choose a specific law22 to govern their relationship in order to ensure that their legal rights and obligations23 are clearly defined and recognized under a particular legal system. this can help to reduce uncertainty and promote consistency in the interpretation and enforcement of the contract.24 legal relations are established in business activities with a foreign element.25 mathilde sumampouw uses the term choice of law as a point of connection. this term is considered more appropriate because it shows the content or substance of the relationship point, namely the parties are given the power to choose a certain law that will govern the contract they are entering into.26 meanwhile, 20 ghansam anand, “prinsip kebebasan berkontrak dalam penyusunan kontrak” (2011) 26:2 yuridika 91–101 at 92. 21 marnia rani, “the choice of law issues in marine insurance disputes resolution in indonesia” (2018) 11:2 fiat justisia 98. 22 brooke marshall, “the hague choice of law principles, cisg, and picc: a hard look at a choice of soft law†” (2018) 66:1 the american journal of comparative law 175. 23 arif rahman et al, “contract law and its impact on indonesian contract law” (2022) 5:4 budapest international research and critics institute journal (birci-journal) 31605. 24 laras susanti, “the comparison between recognition to choice of law in international contracts by courts and arbitration in indonesia” (2019) 41:3 kertha patrika 173. 25 moch isnaeni, perkembangan hukum perdata di indonesia, cetakan i ed (sleman, yogyakarta: laksbang grafika, 2013) at 20. 26 sumampouw mathilde, pilihan hukum sebagai titik pertalian dalam hukum perdjanjian, disertasi ed (jakarta: universitas indonesia, fakultas hukum, program pascasarjana, 1968) at 22. 103 | indonesian journal of law and society kusumadara said that these provisions in english are termed choice of law rules or conflict of laws rules, which are rules that must be followed by courts or authorized officials in selecting laws that must be applied to a civil case that has foreign elements.27 according to the doctrine of experts and the general view of judges regarding the law that applies and is used by judges (applicable law) in their legal considerations is the law chosen by the parties to the contract and used by the judge in deciding his case as a reflection of the principle of freedom of contract. as gerald cooke's opinion, choice of law acts as a law that will be used by forums or judicial bodies, both courts and arbitrations, to ; a. determine the validity of a business contract; b. interpreting an agreement in the contract; c. determining whether or not an achievement has been implemented (implementation of a trade contract); and d. determine the legal consequences of a breach of the contract.28 according to cooke, this does not mean that a country's state judiciary is automatically authorized to resolve disputes. this is what distinguishes the choice of law from the choice of forum, meaning that the choice of law is not the same as the choice of forum.29 even though both are based on the spirit of freedom of contract, choice of law is not the same as choice of forum, or also known as choice of jurisdiction.30 that is, if a law that applies to a contract has been chosen by the parties, the court or forum from the country whose law is chosen does not automatically become the only forum authorized to adjudicate contract-related disputes. vice versa, if the jurisdiction 27 afifah kusumadara, “pemakaian hukum asing dalam hukum perdata internasional: kewajiban dan pelaksanaannya di pengadilan indonesia” (2022) 15:3 ah 443–470. 28 gerald cooke, disputes resolution in international trading (london: kogan page, 1997) at 195. 29 ibid. 30 margaret l moses, the principles and practice of international commercial arbitration: third edition, 3d ed (cambridge university press, 2017). 104 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes of a country has been chosen as a contract dispute settlement forum, it does not necessarily mean that the material law of that country applies to contracts.31 considered different because choice of law focuses on using the choice of substantive law governing the contract by subjecting oneself to the law of a particular country which is deliberately chosen in the contract (governing law). choice of forum is a forum or institution chosen to resolve disputes expressly stated by the parties in international agreements made such as clauses that are given the title dispute settlement.32 this title usually mentions the forum that will adjudicate if a dispute occurs between the parties at a later date.33 the choice of forum focuses more on using the choice of forum or dispute resolution institution. the principles of business dispute resolution often choose an arbitration institution as an alternative settlement besides state courts, which is also inseparable from the use of the lex mercatoria in the world of international trade.34 this dispute resolution forum is related to not only court institutions in a country such as arbitration with court institutions, but also means court forums in a country with courts in other countries. it is not certain that the choice of law determined by the parties to the contract is automatically the same as the choice of forum to choose in resolving disputes. however, there are certain countries that adhere to the 31 p penasthika priskila, “berlakukah hukum asing untuk sengketa kontrak internasional di indonesia?”, (26 april 2019), online: fakultas hukum universitas indonesia <https://law.ui.ac.id/v3/berlakukah-hukum-asing-untuk-sengketa-kontrak-internasional-di indonesia-oleh-priskila-p-penasthika/>. 32 peter mankowski, “just how free is a free choice of law in contract in the eu?” (2017) 13:2 journal of private international law 231–258. 33 alexander hellgardt, “das verbot der kollisionsrechtlichen wahl nichtstaatlichen rechts und das unionsgrundrecht der privatautonomie” (2018) 82:3 rabels zeitschrift für ausländisches und internationales privatrecht (rabelsz) 654–696. 34 mert elcin, “lex mercatoria in international arbitration theory and practice” (2012) 1 european university institute department of law. 105 | indonesian journal of law and society similarity between the choice of law and the choice of forum. the law chosen by the parties to the contract is also the forum for resolving disputes. countries that equate choice of law and choice of forum include england and wales. the selection of a particular law, in this case the law of the country, requires the jurisdiction of the court to adjudicate a dispute. the rationale for this is that the parties are deemed to have tacitly chosen jurisdiction by selecting the laws of england or the laws of wales to govern the contract.35 iv. the judges' views on the choice of law and the selection of the forum the views of indonesian judges in examining and deciding cases related to the choice of law and choice of jurisdiction do not have the same stance. these unequal positions occur for various reasons or the decisions handed down are unclear and not accompanied by clear reasons.36 the decisions are even diametrically opposed to each other, giving rise to legal uncertainty. some of the decisions of indonesian court judges regarding cases where there is a choice of law include cases that were examined by the central jakarta district court which examined and decided on disputes number: 410/pdt. g/2011/ jkt. pst between the plaintiff pt. fega indotama, domiciled in jakarta, sued lvmh fragrances & cosmetics pte. ltd, domiciled in singapore. the position of the case in the case is as follows ; 35 huala adolf, dasar dasar hukum kontrak internasional (bandung: refika aditama, 2008) at 138. 36 yd latip, pilihan hukum dan pilihan forum dalam kontrak internasional: studi mengenai hukum yang berlaku dalam perjanjian patungan di indonesia (universitas indonesia, fakultas hukum, program pascasarjana, 2002) at 160. 106 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes the plaintiff is the legal rights holder as a distributor who receives the sole and exclusive right to import, distribute and sell feminine and masculine perfume products, types of make-up and skin care products under the lvmh fragrances & cosmetics brand and parfums christian dior, for all indonesian territory. the plaintiff as the sole agent also obtained the rights according to the agreement including developing/increasing the sales volume of perfumes christian dior products, occupying the best selling space for perfumes christian dior products in leading malls and department stores, increasing the area of the average sales space. with an increase of average from 20 m2 to 25 30 m2 in all leading malls and department stores. establishing cooperative relationships with leading malls and department stores that are just about to operate, in order to get the most strategic sales space for parfums of christian dior products. whereas without clear justifiable reasons, the defendant unilaterally without the consent of the plaintiff has terminated the exclusive distribution agreement. the defendant is deemed to have committed an unlawful act (onrechtmatige daad) which has caused loss to the plaintiff both materially and immaterially. whereas with the unilateral termination of the exclusive distribution agreement by the defendant, the plaintiff suffered enormous loss both materially and immaterially. therefore the plaintiff requests that the defendant pay compensation costs as compensation to the plaintiff in the amount of usd 10,000,000.(ten million united states dollars). the defendant submitted an exception that the south jakarta district court did not have the authority to examine and adjudicate this case (absolute competence) based on the provisions of article xx of the distribution agreement, the arbitration law and the new york convention which had been ratified by the government of indonesia 107 | indonesian journal of law and society through presidential decree number 34 of 1981. article xx of the distribution agreement requires the parties to resolve all disputes regarding the implementation or termination of the distribution agreement through arbitration in singapore “any disputes or differences arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in singapore in accordance with the arbitration rules of singapore international centre (siac rules) for the time being in force, which rules are deemed to be incorporated by reference to this clause”. furthermore, according to artcle ii (3) of the new york convention on the recognition and enforcement of foreign arbitral awards ("new york convention"), which was ratified by the government of indonesia through presidential decree when receiving a claim where the parties have made an agreement in accordance with the intent of this article, must be at the request of one of the parties, order the parties to resolve their dispute to arbitration, except in the event that the agreement is null and void or unenforceable. law number 30 of 1999 concerning arbitration and alternative dispute resolution 37 article 3 states that the district court is not authorized to adjudicate disputes between parties who are bound by an arbitration agreement. furthermore, article 11 paragraph (1) of law number 30 of 1999 states that the existence of a written arbitration agreement negates the right of the parties to submit dispute resolution or differences of opinion contained in the agreement to the district court. article 11 paragraph (2) the district court is obliged to refuse and will not intervene in a settlement of a 37 undang undang nomor 30 tahun 1999 tentang arbitrase dan adr (lembaran negara tahun 1999 nomor 138, tambahan lembaran negara 138 nomor 3872) 108 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes dispute that has been determined through arbitration, except in certain matters stipulated in this law. the debate in response to this case between the plaintiff and the defendant is the issue of the existence of an unlawful act (pmh) that the plaintiff argued against the defendant. the plaintiff is of the opinion that even though there is an agreement clause regarding the use of singapore arbitration law it does not mean that this lawsuit must be filed at the singapore arbitration because the title of the lawsuit is unlawful act (pmh) which is the absolute competence of the indonesian court in this case the central jakarta district court. the supreme court in various jurisdictions has also repeatedly determined that arbitration jurisdiction based on arbitration agreements is absolute, and the general courts as a whole have no authority to adjudicate any disputes that are subject to or arise from agreements containing arbitration agreements. several supreme court decisions guided by this principle include supreme court decision no. 1034k/pdt/2009 dated 7 december 2009, jungto no. 790k/pdt/2006 dated 5 february 2007, jungto no. 1084k/pdt/2009 dated 21 july 2010 and jungto no. 317pk/pdt/2009 dated 31 december 2010. in the handbook of the judicial technical development project for the supreme court of the republic of indonesia, finding law and solving legal issues, reader iii volume ii of 1991 states that the highest judicial body of the indonesian state adheres to the stance that in the case of an agreement between the parties to resolve their dispute through arbitration, the court has no power (authority) to examine and adjudicate them. the supreme court deals with technical judicial issues which were formulated at the supreme court national work meeting in denpasar on 18-22 september 2005 resulting in a formulation which among other things states that the district/general court is not authorized to adjudicate 109 | indonesian journal of law and society a case in which the parties are bound by an arbitration agreement, even though this was based on a lawsuit against the law (pmh). harahap stated that since 1980, constant jurisprudence in indonesia has abandoned the "niet public order" arbitration clause. this understanding is the principle of "freedom to contract" as formulated in article 1338 of the civil code. hance, on the principle of freedom of contract, jurisprudence emphasizes, among other things38: since the parties agree to include an arbitration clause in the agreement, they are absolutely bound to resolve the dispute to arbitration; by itself this clause has manifested absolute authority for arbitration to decide on reciprocal dispute resolution between the parties; the absolute authority of arbitration will only fall if the parties expressly agree, withdraw the arbitration clause. harahap who was also presented at this trial as an expert expressed his opinion regarding article xx of the exclusive distribution agreement, dated 10 july 2009 made by the parties. according to the expert in the formulation of the clause, first it says that the governing law agreed upon is singapore law and paragraph (2) is all there. there, if all and there experts see no exceptions; hence,it means that all disputes arising from the agreement, the parties who made the agreement have agreed that the settlement is obeyed by the full authority of the arbitration and there are no exceptions to be given authority to the district court; another opinion was conveyed by hatta who gave a different opinion that if a company subject to indonesian law feels aggrieved in the agreement or contract and files a lawsuit in the territory of the 38 m yahya harahap, “penyelesaian sengketa dagang melalui arbitrase” majalah hukum varia peradilan (1993). 110 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes republic of indonesia, does the indonesian court have the right to try and decide on the case? according to the expert, in this case they have the right, because the indonesian state is a legal sovereign country, therefore it is obligatory to protect all nations and citizens everywhere, both within the country and abroad. the existence of the fundamental principle of supremacy is that the indonesian state is obliged to protect all citizens with indonesian legislation which is a source of state law of the republic of indonesia, for law enforcement and providing justice for certainty to indonesian citizens. the panel of judges turned out to be more inclined to the majority opinion and rejected the view of expert sri gambir melati hatta. based on the consideration of the various regulations above, the central jakarta district court finally ruled that it was not authorized to examine and adjudicate this case. the court's decision follows the general view of most as well as law number 30 of 1999 concerning arbitration and adr which has expressly stated. v. different views of indonesian judges the mainstream states that the principle of freedom of contract is a fundamental building block in contracts. the agreement made by the parties applies as law for the party that made it.39 the freedom to contract as described above includes, but is not limited to, contracts in which there are clauses agreed upon by selecting certain laws or certain forums. the implication of adopting this mainstream is that if there is a dispute over the agreement made by the parties it is returned to the agreed agreement.40 this also applies to the principle 39 mosgan situmorang, “the power of pacta sunt servanda principle in arbitration agreement” (2021) 21:4 jurnal penelitian hukum de jure 447. 40 tarmizi, “the principle of consensualism and freedom of contract as a reflection of morality and legal certainty of contract laws in indonesia” (2020) 17:2 web 338. 111 | indonesian journal of law and society of pacta sunt servanda. however, several indonesian court decisions have been recorded as having issued controversial decisions on the same case, namely international treaty cases with foreign elements in which there are clauses on choice of law and choice of forum. in fact, the court stated that it had the authority to examine and adjudicate a case even though it was clear that the agreement included clauses on choice of law and choice of forum. the district court stated that it had the authority to examine and try cases, precisely because the basis for the cassation appellant's lawsuit was unlawful acts, article 23 ab which states that no action or agreement can eliminate the force of law relating to public order (public order) and good faith morals. thus the court should have ignored the arbitration clause in the belli sale contract as proven in several jurisprudence in supreme court decision no. 1851 k/pdt/1984 dated 24 december 1985 jungto supreme court decision no. 1205 k/pdt/1990 dated december 14, 1991, jungto south jakarta district court interlocutory decision no. 454/pdt.g/1999/pn.jak.sel. january 25, 2000 in the case of pt perusahaan dagang tempo (pt tempo) against pt roche indonesia. even more interesting is the west jakarta district court decision number 206/pdt. g/1987/jkt. bar dated june 14, 1988 in a case between bank societe generale singapore who sued hadi raharja cs domiciled in west jakarta. based on the guarantee agreement, the defendants are the guarantors of all the debts of star prospekty pte.ltd singapore which failed to pay and did not fulfill their debt obligations to the plaintiff. the defendant filed an exception stating that the west jakarta district court was not competent to adjudicate because based on the provisions of article 6 of the guarantee agreement the agreement referred to and was subject to singapore law. the west jakarta 112 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes district court is of the opinion that it is the singapore court that has the authority to adjudicate because there are criteria for determining presumed intention in the form of: a. the domicile of both parties is in singapore, b. the currency used is us dollars, b. using a certain standard formulier, c. use english, and refer to singapore law. the most characterised connection is the singapore court. hence, the west jakarta district court stated that it had no authority to try this case. according to latip, the west jakarta district court actually has the authority to try this case41because there is a provision in the contract which states that the parties have the option to file a lawsuit in another court other than singapore as stated in article 6 letter d of the guarantee agreement. based on article 1338 bw which contains the principle of freedom of contract, the parties must obey it because the agreement made by the parties applies as law for the parties who make it. the principle of freedom of contract originates from articles 1320 and 1338 paragraph (1) burgerlijke wetboek voor indonesia (bw)42 or indonesian civil code which respectively emphasize agreement as one of the conditions for the validity of a contract and the freedom of the parties to the contract. on the basis of this contractual freedom, the parties to the contract also have the freedom to choose the law that applies to the contract agreed upon. the opinion of the court which states that the most characteristic connection of the singapore court is inappropriate because this kind of connection point is only needed if there is no express choice of law 41 latip, supra note 26 at 164. 42 burgerlijke wetboek (bw), also known as the civil code, is a civil law code that serves as the primary source of private law in indonesia. it was first introduced in indonesia during the dutch colonial period and has been updated and revised over time. the code covers a wide range of legal topics, including property law, contract law, tort law, and family law, among others. 113 | indonesian journal of law and society determined by the parties. the most characteristic connection is not related to the jurisdictional forum, but only related to applicable law, in this case the west jakarta district court should have the authority to adjudicate by referring to the material substance of singapore law.43 in other words, the west jakarta district court still has the authority to examine and adjudicate this parkara (case) using the substantive law of singapore. this was proven at the level of appeal the decision of the district court was annulled by the high court. the high court is of the opinion that because there is a provision in the contract which states that the parties have the option to file a lawsuit in another court besides singapore. the points of connection that have become juridical facts in the form of domicile of both parties are in singapore, the currency used is us dollars, uses certain standard forms, uses english, and refers to singapore law. it is clear that this case contains foreign elements, so competence must be determined first. court to try this case. based on the provisions of article 18 paragraph 1 ab, because the territory of the defendant is in indonesia, it is closer to the place of residence of the appellant, namely the west jakarta district court. it is interesting that if it is analyzed with the general principles adopted in indonesia which are based on the principle of freedom of contract contained in article 1338 bw and the universal principles adopted by most legal systems in the world, the court that has the authority to try is the chosen court, namely the singapore court. however, it turns out that the ratio decidendi judge of the jakarta high district court considered the provisions of article 18 paragraph 1 algemeene bepalingen van wetgeving voor indonesie (ab). 43 ibid. 114 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes ab is a rule related to international civil law that belongs to indonesia, currently indonesia is still relying on the arrangement of the inheritance of the dutch east indies in algemene bepalingen van wetgeving voor indonesie (staatblad 1847 no. 23) abbreviated as ab, where this provision aims to protect the legal activities of indonesian citizens who come into contact with wna namely in article 16, article 17 and article 18 ab. the ab provisions are still valid as long as they have not yet been enacted according to the 1945 constitution of the republic of indonesia (article 1 of the transitional rules of the 1945 constitution of the republic of indonesia). the high court is based on article 18 paragraph 1 ab because the dispute between the parties in the realm of private relations is not the realm of public law. therefore, it is subject to the procedural law in force in indonesia in accordance with the principles of international private law (lex regit actum principle). in addition, the consideration is based on the provisions of article 118 paragraph 1 hir that a claim should be filed at the residence of the defendant (actor sequitur forum rei). in the view of the high court, starting from the provisions of article 18 paragraph 1 ab regarding the procedure for carrying out an act it was also carried out because the defendants were in indonesian territory, so the filing of a case by both parties was strictly procedural law. hence, they had to comply with the legal provisions of the law ( state) itself in accordance with the principle or doctrine of lex fori or locus regit actum. in this case the legal considerations and opinion of the high court are considered more correct and appropriate, because the interpretation of the choice of law by the parties is not the same or different from the choice of forum or choice of jurisdiction (choice of jurisdiction or choice of court).44 the view stating that the choice of 44 ibid at 167. 115 | indonesian journal of law and society law is not the same as the choice of forum was also conveyed by adolf 45 which confirmed the views of his predecessor, namely gautama, who drew a clear distinction between the choice of law and the choice of forum. interestingly, from the judge's opinion, considering the principle of effectiveness, the judge gave a decision that essentially could be implemented in the future (executable and not illusory). however, the judge at the court of appeal does not use singapore law, even though it has the most characteristic points of affinity with the singapore court, but still adjudicates by referring to indonesia's lex fori law.46 there is a decision that is also interesting to study is the decision of the central jakarta district court case number: 52/pdt.g/2010/pn. jkt. pst. the dispute that occurred between pt pelayaran manalagi (pt pm) as the plaintiff against pt asuransi harta aman persada (pt ahap). the plaintiff and the defendant are legal subjects (rechtpersoon) who were established and domiciled in indonesia and are within the territory of the central jakarta district court with case register number 52/pdt.g/2010/pn. jkt. pst. the legal relationship between the plaintiff and the defendant began with an insurance agreement in the field of shipping in which the insured object was the km bayu prima cargo ship with an insured value of us$1.2 million. for this coverage, pt pelayaran manalagi has paid a premium of us$16,778. this coverage includes, among other things, fire, explosion, accidents in loading or unloading cargo or fuel and negligence of the captain, officer, crew or pilot. km bayu prima sailed from tanjung perak port, surabaya to batu ampar port, batam and belawan port, medan. arriving at the port of batu ampar, may 4 2006, km bayu prima experienced a fire which resulted in losses for 45 adolf, supra note 5 at 138. 46 latip, supra note 26 at 169. 116 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes pt pm, so pt pm submitted a claim to pt ahap as the insurance guarantor. pt ahap refused to pay the insurance claim for the reasons, among others, that there was important information regarding the year of the ship's construction which pt pm had not informed pt ahap earlier. based on data from the insurance company km bayu prima, it was made in 1973, while the written policy was made in 1979. in addition, the placement of dangerous goods was not in accordance with the recommendations and the amount of cargo transported exceeded syahbandar's permit. this is what underlies pt pm's lawsuit on the basis of a default lawsuit against pt ahap which was filed at the central jakarta district court. in the insurance agreement agreed upon by the parties, there is a clause that reads "this insurance is subject to english law and practice." however, in the agreement there is no choice of forum (jurisdiction) as a measure of anticipation in the event of a dispute between the parties. defendant pt ahap argued in court that the insurance agreement applies to english law chosen by the parties both materially and formally. according to pt ahap, the central jakarta district court has no authority to examine and adjudicate this dispute. furthermore, according to pt ahap, this dispute should be submitted to and tried by a british court because english law as the choice of law applies to insurance contracts that have been agreed upon. regarding this lawsuit, the panel of judges at the central jakarta district court, which for the first time examined and tried this case, finally decided that the indonesian court, in this case the central jakarta district court, had the authority to try this dispute with the considerations that: first; the parties to the insurance agreement are indonesian legal entities. second; the insured object is in indonesia, 117 | indonesian journal of law and society and third; ship fire locus delicti occurs in the jurisdiction of indonesian law. furthermore, the panel of judges decided that pt ahap had defaulted, and therefore had to pay insurance claims that were the rights of pt pm including compensation for potential profits that pt pm failed to obtain as a result of defaults committed by pt ahap. pt asuransi harta aman had to pay a claim amounting to us$843,200. not only that, the assembly also granted pt servants manalagi's request for compensation for a potential profit of idr 14,306,040,000. for late fees, the court determines 6 percent of us$843,200 per year, from the time the suit is filed until it is paid. the decision of the central jakarta district court was later upheld by the jakarta high court. the jakarta high court in its considerations stated that pt ahap could not distinguish between choice of law and choice of forum which are two different things. although english law has been agreed upon as the applicable law for insurance agreements, the parties do not choose a specific forum. judex factie courts of first instance and appellate level in their legal considerations refer to the provisions of insurance law applicable in england, namely the marine insurance act 1906, as well as indonesian legal provisions, namely government regulation number 73 of 1992 concerning the implementation of insurance companies, and bw for determining acts of default and compensation to be paid by pt ahap. based on the judex factie decision, pt ahap filed an appeal to the supreme court of the republic of indonesia as the holder of the highest judicial authority with case register number 1935k/pdt/2012. the supreme court at the cassation level unexpectedly granted pt ahap's cassation request and canceled the judex factie decisions of the central jakarta district court and the jakarta high court. the panel of judges at the cassation level decided for themselves that the 118 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes central jakarta district court was not authorized to examine and try this dispute and stated that pt pm's lawsuit was unacceptable (niet onvankelijke verklaard). the consideration of the panel of judges at the cassation level of the supreme court stated that the insurance agreement that had been agreed upon was valid as a law for the parties as stipulated in article 1338 bw. because the parties have agreed to choose english law in the insurance agreement, the central jakarta district court is not authorized to examine and adjudicate this dispute because the lawsuit should have been filed in the english court.. some of the analyzes of some of these decisions include: why is english law chosen? the use of english law in the insurance agreement between pt pm and pt ahap was more due to customary law. moreover, the object of the agreement is insurance for motor ships which is in the shipping sector. english law was chosen as customary law in the field of shipping because british law in the form of the marine insurance act 1906 is the best maritime law and is commonly used in the world of shipping. if it is associated with the same legal subject, it is an indonesian legal entity with the use of english law, is this not a problem? in this regard, it is necessary to refer to sumampouw's opinion regarding the use of customary law and this is normal as long as it is in good faith that the use of choice of law is not intended to smuggle law. in other words, the choice of english law by the parties does not conflict with the applicable laws and regulations. in addition, according to sumampouw, the choice of law is an unlawful law. hence, it is the freedom of the parties to determine which part of the contract applies entirely to the particular law they 119 | indonesian journal of law and society make or only part of it applies to some of the contract law they make. however, this must be stated in the contract. such a situation is known as the great cleavage (grosse spaltung)47 namely a division of law that is intentional and that occurs due to the choice of law is said to only apply to the legal consequences of the agreement, whether or not the agreement is legally linked objectively. the occurrence and validity of the agreement is linked to the place where the agreement was made (lex loci contractus) but the legal consequences are linked to the will of the parties. in this case the will of the parties to regulate the legal consequences of agreements made in the field of shipping is subject to english law and this can be justified under international business law. even though english law has been chosen as the applicable law for the insurance contract agreed upon by pt pm and pt ahap, the court which has the authority to adjudicate this case is not automatically the english court. because there is a clear distinction between the choice of english law and the courts competent to adjudicate this dispute. in this case the judex factie considerations are appropriate and correct because they adhere to the separation between the choice of law and the choice of forum. this means that it is possible that by using the point of reference taught by sudargo gautama and m sumampouw, actually a judex factie can make a decision based on material law or substantive law from the united kingdom but still has the authority to try this case. this consideration is also in line with the case decision discussed previously, namely efficiency considerations. consideration of the principle of effectiveness, that is, the judge gives a decision which in essence can be implemented in the future (executable and not illusory). in addition, the judicial power law also adheres to a very 47 mathilde, supra note 16. 120 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes important principle, namely the creation of a simple, fast and low cost trial. what happens if a lawsuit is filed in england just because the law chosen is english law, of course there are problems in the implementation of the decision, where all parties, objects, places where the incident occurred are all in indonesian territory. the point of connection as part of the legal teaching of the most characteristic connection is very clear and clear in this case in the form of a. the place where the contract was signed, b. legal position of the parties c. legal entity of the parties, both of which are indonesian legal entities and d. more importantly another link point in formal law which is very thick in the use of the actor squitur forum rei principle, namely the lawsuit filed at the defendant's place of residence has been very adequately applied in this case. this is in line with the opinion of friedrich carl von savigny48 that civil cases should be governed by the law of the country or place that has the closest link to the case, even though the law is the law of a foreign country. the use of the law of a country that has the closest link point will lead to mutual respect and equality in all civil law systems in the world, without distinguishing between national law and foreign law, between own citizens and foreign nationals. the selected law does not automatically apply to the selected forum. mainstream opinion holds that the choice of law is different from the choice of forum. judex factie the central jakarta district court and the jakarta high court adopted this majority opinion. this opinion also argues that even though the choice of law is not the same as the choice of forum, it does not mean that paradoxically separates the authority to adjudicate the chosen forum. because in practice, as 48 fk von savigny & w guthrie, private international law: a treatise on the conflict of laws, and the limits of their operation in respect of place and time, legal classics library (t. & t. clark, 1869). 121 | indonesian journal of law and society happened in this case, it certainly creates endless conflicts. let's just say that the choice of law is applied letterlijk in this case it will certainly cause difficulties for british court judges, all of whose parties are in indonesia. judex factie judge's consideration does not mean that it cannot be unanimous that the judge applies english law in this dispute, because in referring to english law, the judge also seeks compatibility with indonesian law. the panel of judges at the central jakarta district court and the jakarta high court were very careful in applying their law, it was proven that they paid close attention to the aspects of private international law in this dispute and also cited the provisions of english sea transportation law because the parties had chosen english law as the applicable law for disputed insurance contract.49 consideration of the judex factie stating that the authority to adjudicate this case has considered the use of the chosen law in this case the english law marine insurance act 1906 as a form of respect for what has been agreed upon by the parties. the supreme court's cassation decision, which in the author's view is very letterlijk in applying the principle of freedom of contract without looking at other legal aspects, includes the use of the lex fori law of the parties which is commonly used in international trade law traffic. in addition, as a dispute resolution institution at the plenary level, the views of the cassation judge should be very open and objective casuistically, especially using clear principles, namely the principle of simplicity, speed and low cost. the supreme court's cassation ruling which overturned the judgments of the judex factie courts of the central jakarta district court and the jakarta high court by declaring the claim unacceptable, rendered efforts to seek justice for both parties futile so that the role of the courts in ending this dispute was truly achieved. materially, the efforts made from the court of first 49 lena farsia & rafika taufik, “penerapan asas ketertiban umum terhadap putusan arbitrase asing di indonesia” (2018) 20:3 jkanun 439–456. 122 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes instance to the cassation level did not resolve the problems experienced by the parties. the implication of imposing an unacceptable decision (niet onvankelijke verklaard) means that the supreme court is of the opinion that indonesian courts do not have the authority to try this case and the parties must resolve the case starting all over again with english courts. thus there is no other way to file a lawsuit in indonesian courts because if you make a new lawsuit, it will certainly be hindered by the principle of nebis in idem.50 vi. conclusion the principle of freedom of contract in the international business contracts involves the use of two different legal systems and presents the choice of law or choice of forum. the majority view states that choice of law is not the same as choice of forum. howevern, some indonesian court judges disagree. indonesian judges recognize the applicable law chosen by the parties, but some judges view the choice of law as synonymous with the choice of forum. these differences in opinion create legal uncertainty for justice seekers, especially in business contract disputes. judges' considerations deviate from the mainstream adherents of freedom of contract, emphasizing limitations and adherence to statutory regulations without violating decency and public order. 50 elisabeth nurhaini butarbutar, “asas ne bis in idem dalam gugatan perbuatan melawan hukum” (2018) 11:1 jurnal yudisial 23–39. 123 | indonesian journal of law and society references adolf, huala, dasar dasar hukum kontrak internasional (bandung: refika aditama, 2008). ———, hukum perdagangan internasional, prinsip prinsip dan konsepsi dasar (bandung: rajawali press, 2004). ———, hukum transaksi bisnis transnasional (bandung: keni media, 2020). aronstam, p j, consumer protection, freedom of contract, and the law (cape town: juta, 1979). atiyah, p s, law and modern society, 2nd ed ed (oxford ; new york: oxford university press, 1995). cooke, gerald, disputes resolution in international trading (london: kogan page, 1997). hernoko, agus yudha, hukum perjanjian, asas proporsionalitas dalam kontrak komersial (yogyakarta: laksbang grafika, 2008). isnaeni, moch, perkembangan hukum perdata di indonesia, cetakan i ed (sleman, yogyakarta: laksbang grafika, 2013). latip, yd, pilihan hukum dan pilihan forum dalam kontrak internasional: studi mengenai hukum yang berlaku dalam perjanjian patungan di indonesia (universitas indonesia, fakultas hukum, program pascasarjana, 2002). mathilde, sumampouw, pilihan hukum sebagai titik pertalian dalam hukum perdjanjian, disertasi ed (jakarta: universitas indonesia, fakultas hukum, program pascasarjana, 1968). moses, margaret l, the principles and practice of international commercial arbitration: third edition, 3d ed (cambridge university press, 2017). savigny, fk von & w guthrie, private international law: a treatise on the conflict of laws, and the limits of their operation in respect of place and time, legal classics library (t. & t. clark, 1869). 124 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes sjahdeini, sutan remy, kebebasan berkontrak dan perlindungan yang seimbang bagi para pihak dalam perjanjian kredit bank di indonesia, cet. 1 ed (jakarta: grafiti, 2009). ali, moh & agus yudha hernoko, “characteristics of party autonomy in a transnational electronic consumer contract” (2019) 35:1 yuridika 55. amalia, rizky amaliaa, fairuz zahirah zihni hamdanb, “the limitation in choice of law and choice of forum within international business contract” (2023) 6:3 international journal of social science research and review 147. anand, ghansam, “prinsip kebebasan berkontrak dalam penyusunan kontrak” (2011) 26:2 yuridika 91–101. butarbutar, elisabeth nurhaini, “asas ne bis in idem dalam gugatan perbuatan melawan hukum” (2018) 11:1 jurnal yudisial 23–39. chukwu, anayochukwu, tobechi agbanike & lasbrey anochiwa, “african continental free trade area (afcfta) agreement and the mega-regional trade agreements (mrtas): what are the underlying challenges and prospects for africa-south-south trade?” (2021) 9:5 jes 414 elcin, mert, “lex mercatoria in international arbitration theory and practice” (2012) 1 european university institute department of law. farsia, lena & rafika taufik, “penerapan asas ketertiban umum terhadap putusan arbitrase asing di indonesia” (2018) 20:3 jkanun 439–456. harahap, m yahya, “penyelesaian sengketa dagang melalui arbitrase” majalah hukum varia peradilan (1993). hellgardt, alexander, “das verbot der kollisionsrechtlichen wahl nichtstaatlichen rechts und das unionsgrundrecht der privatautonomie” (2018) 82:3 rabels zeitschrift für ausländisches und internationales privatrecht (rabelsz) 654–696. 125 | indonesian journal of law and society ilham, misbahul, bhim prakoso & ermanto fahamsyah, “compensation arrangements in expropriating goods and equipment: an indonesian experience” (2020) 1:2 indonesian journal of law and society 199–218. irakli, tedoradze, “the principle of freedom of contract, pre-contractual obligations legal review english, eu and us law” (2017) 13:4 esj 62 kusumadara, afifah, “pemakaian hukum asing dalam hukum perdata internasional: kewajiban dan pelaksanaannya di pengadilan indonesia” (2022) 15:3 ah 443–470. majd, saeid rabiei, “globalization impact on the states sovereignty and the development of international law on petroleum contracts” (2017) 66 journal of law, politic and globalization 187. mankowski, peter, “just how free is a free choice of law in contract in the eu?” (2017) 13:2 journal of private international law 231–258. marshall, brooke, “the hague choice of law principles, cisg, and picc: a hard look at a choice of soft law†” (2018) 66:1 the american journal of comparative law 175. paunio, elina, “beyond predictability – reflections on legal certainty and the discourse theory of law in the eu legal order” (2009) 10:11 german law journal 1469-1493. rani, marnia “the choice of law issues in marine insurance disputes resolution in indonesia” (2018) 11:2 fiat justisia 98. rahman, arif et al, “contract law and its impact on indonesian contract law” (2022) 5:4 budapest international research and critics institute journal (birci journal) 31605. sánchez lorenzo, sixto, “choice of law and overriding mandatory rules in international contracts after rome i” in petar sarcevic et al, eds, yearbook of private international law (sellier – de gruyter, 2011) 67. 126 | freedom of contract: the indonesian court's decisions on internasional bussiness disputes saravistha, deli bunga, “eksistensi lex mercatoria dalam praktik kontraktual dan penyelesaian sengketa lintas negara anggota pbb” (2022) 5:1 jurnal ilmiah raad kertha 64–75. situmorang, mosgan, “the power of pacta sunt servanda principle in arbitration agreement” (2021) 21:4 jurnal penelitian hukum de jure 447. susanti, laras, “the comparison between recognition to choice of law in international contracts by courts and arbitration in indonesia” (2019) 41:3 kertha patrika 173. tarmizi, “the principle of consensualism and freedom of contract as a reflection of morality and legal certainty of contract laws in indonesia” (2020) 17:2 web 338. valcke, catherine, “comparative law as comparative jurisprudence: the comparability of legal systems” (2004) 52:3 the american journal of comparative law 713. winata, agung sujati, “ketidakpastian hukum dalam penyelesaian sengketa bisnis internasional melalui arbitrase internasional di indonesia” (2023) 3:1 ilr 89–98. yusuf, bing yusuf, liliana tedjosaputro, “dispute resolution for international contract to achieve legal certainty” (2017) 14:5 international journal of business, economics and law 169. priskila, p penasthika, “berlakukah hukum asing untuk sengketa kontrak internasional di indonesia?”, (26 april 2019), online: fakultas hukum universitas indonesia <https://law.ui.ac.id/v3/berlakukah-hukum-asing untuk-sengketa-kontrak-internasional-di-indonesia-oleh-priskila-p penasthika/>. microsoft word 21943-.docx indonesian journal of law and society (2021) 2:1 1-28 issn 2722-4074 | https://doi.org/10.19184/ijls.v2i1.21943 published by the university of jember, indonesia available online 03 march 2021 __________________________ * corresponding author’s e-mail: audityasaputra@gmail.com the dark side of tobacco industry’s csr: a socio-legal analysis of the indonesian corporate hegemony campaign auditya firza saputra* university of indonesia, indonesia abstract: as the only country in the asia-pacific region that has not yet accessed the framework convention on tobacco control (fctc), indonesia faced an alarming smoking prevalence rate. the situation has worsened during the covid-19 outbreak because excessive tobacco smoking behavior increased people’s health vulnerability. despite the destructive impact, most indonesian citizens shared a common belief about the tobacco industry's importance to the economy. this paper aimed to seek the primary legal issue to reveal how the hegemony latently operated. it deconstructed the established dogma about the industry's misperceived social reputation that frequently served as justifications favoring the industry. narratives on economic contribution and the industry’s philanthropic campaigns displayed the industry as the protagonist sector and played a significant role in creating a false public opinion on the tobacco industry's reputation. using a qualitative socio-legal approach, this paper critically described how the industry used the hegemonic methods manifested in corporate social responsibility (csr) campaigns, which contradicted the ethical principle to secure its market dominance. as a result, the partial legal approach to tobacco control regarding csr encountered minimalist market interventions from the government, which emerged as the main causes of such an anomaly. as the tobacco control challenge predictably got more difficult on the verge of an economic downturn, the urgency of accessing the fctc was highly crucial to saving citizens from the upcoming demographic calamity. keywords: tobacco industry, business and human rights, corporate hegemony. copyright © 2021 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions submitted: 10/01/2021 reviewed: 13/01/2021 revised: 31/01/2021 accepted: 06/02/2021 how to cite: saputra, auditya firza, “the dark side of tobacco industry’s csr: a socio-legal analysis of the indonesian corporate hegemony campaign” (2021) 2:1 indonesian journal of law and society 1-28, online: <https://doi.org/10.19184/ijls.v2i1.21943>. 2 | the dark side of tobacco industry’s csr: a socio-legal analysis i. introduction for quite a long time, the tobacco industry had been known as a vital sector in indonesia. this industry is not only for creating numerous employment fields, among other excised industry sectors, but also generates up to 96% of annual revenues to this archipelagic state.1 to a certain extent, this paper investigated why the industry is quite popular to the vast majority of indonesian citizens who frequently perceive the parochial ideas that the industry is merely for promoting significant economic contribution.2 with its significant return, however, it came along with the latent risks. although the contribution narrative might sound favorable to the industry loyal partisans, this phenomenon generated further social consequences. the societal tendency to normalizing the industry’s harmful business core suggested a latent example. as its further implications, corporate social responsibility (csr) became a popular instrument for big tobacco corporations attracting public endorsement. backed with substantial financial resources, the industry opportunistically utilized the campaign to portray virtuous narratives into its problematic existence. hence, such a decorated reputation served the industry actors as social protagonists, despite the inherent destructive impact. however, unlike semiotic studies of tobacco industry advertisement, critical research on the industry's csr campaign remained unpopular among indonesian legal scholars. previous legal studies primarily focused on the legal approach—whether csr should be mandatory or voluntary. on the other side, because of the altruistic feature, there were no many scholars that openly admitted that the ethical campaign somehow played a significant part in creating the tobacco hegemony. csr's moral issue in the controversial industry sector, paradoxically, resembled an act of 'doing bad while doing good.'3 1 dwi hadya jayani, “tren kenaikan cukai rokok, 2020 catat kenaikan tertinggi”, online: databoks katadata <https://databoks.katadata.co.id/datapublish/2019/09/16/ tren-kenaikan-cukai-rokok-2020-catat-kenaikan-tertinggi>. 2 ministry of industrial affairs, "gambaran umum industri rokok," online: <https://www.kemenperin.go.id/gambaran-umum-industri-rokok.php>. 3 ye cai, hoje jo & carrie pan, “doing well while doing bad? csr in controversial industry sectors” (2012) 108:4 j bus ethics 467–480. 3 | indonesian journal of law and society scholars like tandlittin and luetge revealed that the indonesian tobacco industry’s philanthropic trend contradicted the ethical philosophy of social responsibility.4 to some extent, philanthropic csr was not only an effective soft-selling strategy but also a pseudo-advertising method, an alternative to a shrinking promotion sphere after many limitations made against the marketing rule. as the hegemony involves, the reputation earned from the csr seemed to work well by often hearing apologetic reasons employed by the partisan to defend the industry despite being linked to many severe societal problems, such as poverty issues and escalating premature deaths.5 while the lack of optimum intervention from the authority was the primary reason, this lingering cycle of reputation-making had also become a primary factor in promoting excessive tobacco consuming behavior, which put indonesia under a threatening level of smoking prevalence situation.6 nevertheless, further on the verge of a worsening pandemic crisis, the concern on prevalence level attracted greater attention from the global community. recent research revealed causal correlations of smoking habits to the increasing of covid-19 fatality risks.7 it argued that the long-term tobacco smoking habit multiplies the death risk of the patient. the bigger smoker population one country obtained simultaneously generates more vulnerability to the people. to some extent, the finding self-explained the unspoken reason behind the very high death cases ratio in the nation, as the country was named among the biggest smoker populations in the world.8 the threat encouraged criticisms against the government's commitment to 4 harsman tandilittin & christoph luetge, “csr activity of tobacco companies in indonesia: is it a genuine social responsibility?” (2015) 11 ojhe, online: <http:// aquila.usm.edu/ojhe/vol11/iss1/3>. 5 indonesian statistics bureau, profil kemiskinan di indonesia tahun 2019, no. 56/07/ th.xxii (jakarta: badan pusat statistik, 2020). 6 richard d hurt et al., "roadmap to a tobacco epidemic: transnational tobacco companies invade indonesia" (2012) 21:3 tob control 306–312. 7 roengrudee patanavanich & stanton a glantz, “smoking is associated with covid19 progression: a meta-analysis” (2020) 22:9 nicotine tob res 1653–1656. 8 the jakarta post, “smokers in indonesia are at high risk for covid-19’: who”, online: the jakarta post <https://www.thejakartapost.com/life/2020/03/14/smokersin-indonesia-are-at-high-risk-for-covid-19-who.html>. 4 | the dark side of tobacco industry’s csr: a socio-legal analysis lowering the smoking prevalence level. in such a view, the number of fatal cases could have been reduced and the the government was more mindful of mending the issue in the first place. however, as the global economic recession arrives, the future of indonesia’s tobacco control remained uncertain. predictably, the economic downturn forced the authority to take any opportunist option to recover from the crisis. in such an urgent scenario, the bona fide industry would emerge as a reliable sector to rescue the economy.9 consequently, the government would have limited options other than encouraging more flexible tobacco-market mechanisms, resulting in a massive increase in supply and demand. the scenario would lead to excessive current consumption escalating into demographic calamity. this paper aimed to seek the legal substance's core issue to reveal how the hegemony latently operated. by doing so, it deconstructed the established dogma about the industry's misperceived social reputation that frequently served as justifications favoring industries. two questions raise respectively: first, what is the wrong in the existing legal substance that causes the anomaly likely to occur? second, how do csr campaigns contribute to creating the hegemony? to answer these primary questions, the paper will contain three sections. the first covers the sociological aspect of hegemony theory and describes how philanthropy campaign hegemonically operates. the second section provides a discursive background on csr's ethical theory and its normative comparison to the indonesian anomaly. the last section will elaborate on problems within the existing legal substance. ii. methods the paper used a qualitative socio-legal method using a literature review.10 readers are expected to see the critical legal study (cls) approach and its interdisciplinary analysis with sociology doctrine applied in the paper. the legal materials were sourced from a hard-law instrument such as national 9 erlangga djumena, “secercah asa di tengah ancaman resesi”, online: kompas.com <https://money.kompas.com/read/2020/04/25/211100526/secercah-asa-di-tengahancaman-resesi>. 10 reza banakar & max travers, theory and method in socio-legal research, oñati international series in law and society (oxford; portland, or: hart pub, 2005). 5 | indonesian journal of law and society laws and government regulations; soft-law from international voluntary guidelines, the united nations business and human rights instruments. the author used secondary data that were collected from previous academic research and other publications in textbooks, journal articles, institutional reports, and online news media platforms, limited to a maximum of seven years backdate. the paper's identified issue served an objective to highlight the misconception and encourage structural change for a better tobacco control policy. iii. tobacco industry hegemony a. the unseen normalization attempt in contrast to most self-autonomy theories, the thesis of hegemony suggests that popular ideas control people's behavior. how humans perceive their reality is influenced by the latent force from surrounding opinions or information that had priorly established. gramsci views hegemony as a cultural and ideological means whereby the dominant social class influences certain ideological views to gain spontaneous consent from the dominant class.11 in short, some versions of the so-called reality were intentionally deployed to maintain social domination. in laissez-faire, the hegemonic actor was not limited to authority, as gramsci once believed. other crucial players like corporations employ a similar method to come into domination. urban dictionary offers a more precise casual definition of corporate hegemony: “corporate influences over the masses as the ultimate goal is to have masses completely stripped of critical thinking so that the masses can be controlled and manipulated like customer puppets.”12 however, unlike other kinds of power attributed to coercivity, hegemony in action operates through subtle, persuasive approaches. for instance, cultural instruments like pop-culture or mass media exposure. hegemony occurs 11 antonio gramsci, quintin hoare & geoffrey nowell-smith, selections from the prison notebooks of antonio gramsci (london: lawrence & wishart, 1971). 12 "urban dictionary: corporate hegemony," online: urban dictionary <https://www. urbandictionary.com/define.php?term=corporate%20hegemony>. 6 | the dark side of tobacco industry’s csr: a socio-legal analysis subconsciously—without being noticed by the recipients—which for the most part, it works to alleviate, cover the hidden anomalistic aspect of a context. when the tobacco industry is narrated as a beneficial sector to the economy, such a version of reality puts forward an apology towards the growing sentiments or cynicism over the public health concerns. that said, understanding hegemony, therefore, requires knowing and deconstructing how the ideas of reality were intentionally constructed, deployed, and normalized as a common belief in everyday life to appear happening for granted. on its operative aspect, the italian theorist pointed out two influencing elements of hegemony-in-action, inter alia, the intellectual and moral affection. wherein this part, the decorated philanthropic act, virtuous reputation, and the glorifying economic narratives serve as the powerful public opinion-making instrument. 1. intellectual influence the intellectual sphere from csr plays a significant role in attracting cognitive recognition. in this context, the affection manifests in (a) the softselling methods using pop-culture exposure; and (b) popular economic narrative that speaks about the industry reputation. historically, since the emerging global anti-tobacco movement in the 1970s, the polemic of tobacco products' harmful risks put many industry actors in an existential crisis.13 the tremendous pressure of losing consumers forced tobacco executives to find better marketing strategies to endure market regression. however, as the unethical business sector lacks any decent description to promote because it contains no actual use-value, the industry adopted a new kind of marketing method to rebrand a better representation to brand image. an example of this intellectual affection frequently appeared in the commodification advertisement technique. by semiotically associating certain cultural constructions such as masculinity, freedom, or nationalism as a representation of the product, the industry can attract a specific consumer 13 sarah milov, the cigarette: a political history (cambridge, massachusetts: harvard university press, 2019). 7 | indonesian journal of law and society population who believes it truly expresses the identities.14. here the industry allocates invested big money to hire marketing and communication experts to draw a specific segment of the population by designing the intriguing tobacco advertisement under covert fashion. however, even without displaying the product visually, the promotion can subliminally affect the audience’s preferences. figure 1. surya pro cigarette ‘never quit’ commercial for instance, gudang garam’s surya-pro “never quit” commercial (figure 1) suggests the semiotic signification among two primary objects: (a) the masculine men image and (b) the 'never quit' which. semiotically, the subliminal message defines that a genuinely masculine man will never quit (smoking). similar commodification techniques are used in many other cigarette advertisements broadcasted in contemporary indonesian media. for example, a mild has "go ahead" and star mild has "ini baru laki!". on this aspect, bourdieu explains that any individuals involved in the market immersed in the symbolic construction, which creates preferences.15 commodification marketing aims to drive consumer interest to purchase the material or use the value of such physical item and the identity construction 14 mimi nichter et al., "reading culture from tobacco advertisements in indonesia" (2009) 18:2 tobacco control 98–107. 15 pierre bourdieu, the social structures of the economy (cambridge, malden, ma: polity, 2005). 8 | the dark side of tobacco industry’s csr: a socio-legal analysis attached to the product or ‘extrinsic value’. due to the intense commodification exposure, the method transformed from merely a marketing attempt to a normalization of the idea that the product truly represents constructed characteristics.16 a survey made by tobacco control support centre empirically affirmed that this kind of subliminal advertising effectively persuading youths to perceive that smoking expresses true identity or associating the habit as a typical trend of urban lifestyle.17 furthermore, the other form of cognitive affection in hegemony manifests in the glorifying economic narrative from the tobacco industry; for instance, the excellent role of industry for creating millions of employments or generating significant financial revenue for the state. quite a contrast with the advertising technique that explicitly targets cigarette consumers' perception, this populist narrative effectively attracts vast majority support— including the non-smoker population, as it speaks common interest. the narrative is so powerful that it eventually becomes a means to attract intellectual recognition or legitimacy from the vast public to protect the industry’s expansive maneuver. such a narrative frequently becomes a significant burden to tobacco control effort because any policy made against the industry would have been seen as a dilemmatic effort for juxtaposing the poor tobacco farmers or millions of tobacco labor relying lives on the industry. the authority, on the other hand, plays a role in affirming the narratives. for instance, as appeared in the following part of these official speeches: “the development of this industry has become part of the history of our nation and culture, and especially kretek cigarettes, a legacy of our 16 afdal makuragga putra, “aku merokok maka aku berpetualang: konstruksi pesan dan resepsi khalayak terhadap iklan-iklan rokok djarum super versi petualangan” in bunga rampai ilmu komunikasi (yogyakarta: litera press, 2017) 225. 17 ridwan fauzi et al., hubungan terpaan iklan, promosi, sponsor rokok dengan status merokok di indonesia (jakarta: tobacco control support center & iakmi, 2019). 9 | indonesian journal of law and society ancestors and have been rooted for generations,” claims airlangga hartanto, the minister of industry.18 another example is in a response made by president jokowi when asked why indonesia has not accessed the framework convention of tobacco control to date. "i do not want us (indonesia) just to join in or follow trends (accessing the fctc), just because many countries have already joined, which can put many tobacco farmers' lives at stake.”19 the keywords in italic within the rhetoric were intentionally selected to highlight the industry's protagonist character. such populist, apologetic attribution drives the vast majority to take such positive attributes as a granted reality. however, such narratives create a certain social symptom, such as defensive gesture, that drives the public to be permissive or misperceive by only setting an eye on the good aspect. the intense exposure from these decorated narratives would create a false consciousness that serves as justification over the risks, which supposedly put into concern in the first place. finally, this complex cycle of opinion attempts will significantly influence how the public perceives the industry's reputation. 2. moral influence unlike the previous aspect, which captures the cognitive sphere, this part of the hegemonic method aims to influence the moral context. the csr campaigns have their role: manifested in mostly philanthropic displays like charity giving or education scholarship, the csr become a vehicle to social capital creation.20 since positive impressions are crucial for this unethical sector, csr offers them the opportunity to appear, the protagonist, as if the 18 “kemenperin: kontribusi besar industri hasil tembakau bagi ekonomi nasional”, online: <https://kemenperin.go.id/artikel/17257/kontribusi-besar-industri-hasiltembakau-bagi-ekonomi-nasional>. 19 ahmad nurhasim, “183 negara setuju fctc, jokowi: indonesia jangan ikutikutan”, online: tempo <https://nasional.tempo.co/read/779728/183-negara-setujufctc-jokowi-indonesia-jangan-ikut-ikutan>. 20 guido palazzo & ulf richter, “csr business as usual? the case of the tobacco industry” (2005) 61:4 j bus ethics 387–401. 10 | the dark side of tobacco industry’s csr: a socio-legal analysis corporate is socially engaged to the community. in its action, moral affection serves to affect moral consent or impression from the vast majority.21 by conducting philanthropy, the unethical sector changes its look into ethics. as mcdaniel & malone suggests, tobacco giants use social responsibility campaigns to create the altruistic corporate narrative and rebrand the corporate reputation.22 in the indonesian context, philanthropy often emerges as the best option for the tobacco giants. it is not only for its practicality reason but also because of its high desirability on public perception. philanthropy touches people personally; thus, the positive impression will be easier to obtain. culturally, most indonesian societies tend to prize this kind of behavior as a virtue; hence, the altruist image complements the former economic contribution narrative. in its relations with hegemony, the more personal the affection, the easier it to cast moral legitimacy. therefore, with such a protagonist impression, the excellent reputation emerged as the alternate representation of the industry existence, covering up the sector's harmful footprints. like intellectual affection, the moral influence stimulates the apologetic gesture, as indicated by the tendency to juxtapose the risks with the industry's social contribution. the philanthropy, too, appears as a gestural sign of the industry's social devotion and bona fide. in return, the stakeholder who admires the conduct will prefer the industry to get more protection they deserve in return for social devotion. the thing is that such an excuse often disrupts the critical issue of the danger of the industry. the combination of reputable social and strong financial capital transforms the industry into the too big to fail sector for the country, which explains why many still support the industry despite the high smoking prevalence issue it causes. on this, saputra suggests the interesting correlation of variables among hegemonic narrative (x1), level of criticism (x2), to consumer expectation on tobacco 21 philipp bachmann & diana ingenhoff, “legitimacy through csr disclosures? the advantage outweighs the disadvantages” (2016) 42:3 public relations review 386– 394. 22 patricia a mcdaniel & ruth e malone, “‘what is our story?’ philip morris’s changing corporate narrative” (2015) 105:10 am j public health e68–e75. 11 | indonesian journal of law and society industry csr (y).23 his result of studying 79 samples of jakarta urban smoker population using 49 questionnaire items shows the significance among the acceptance of tobacco industry virtuous narrative and the consumer expectation towards tobacco industry csr (see table 1). interestingly, the research revealed that the more a consumer incline to highly prizes the industry existence as meritorious, the lower would it expect the industry corporation to implement high social responsibility standards. model sum of squares df mean square f sig. 1 regression 2241.978 2 1120.989 28.154 .000b residual 3065.822 77 39.816 total 5307.800 79 a. dependent variable: y b. predictors: (constant), total x2, total x1 table 1. anova test result the outcome emphasizes csr's effectiveness for the industry to narrow down the possibility of future liability claims from the consumer. given these points, csr's moral impression affirms its role as the best instrument to establish particular ideological views favorable to the tobacco industry's existence. by establishing certain views about the industry’s reputation, the tobacco corporation can create a drive towards the market's subconscious preferences and manage to deter any possible market regression and maintain its hegemonic dominance. 23 auditya firza saputra, self-control product as implementing instrument for tobacco industry corporate social responsibility: a socio-legal study (thesis, universitas indonesia, 2020) at 181-192. 12 | the dark side of tobacco industry’s csr: a socio-legal analysis iv. the ethical issue of tobacco industry philanthropy: from philanthropy to ethical responsibility some scholars argue that csr's purpose is to build social engagement through public relations methods, including a defense strategy to counter negative sentiments. in the former view, philanthropy is just among other tools to achieve ends; some might object that corporate philanthropy should be no problem as a social responsibility campaign because it is a voluntary act. this paper should agree with the previous concern, but its essential point is that when unethical businesses like the tobacco industry perform the conduct, the ethical issue eventually emerges. philosophically, csr's basis speaks about the attempt to moralize corporations, as the subject’s fictional nature from separate personality often exempted the actor from its social or moral obligations.24 the shift from merely corporate's legal obligation to the broad scope of social obligations demands the actor comply with a holistic approach. its philosophical foundation, therefore, retains a high teleological and deontological virtue ethics.25 that means csr should not merely a ceremonial, formalistic act done by the corporation; the outcome must indeed promote the ethical business transformation for broad stakeholder interests. criticism against philanthropy as csr practice often emerges from a belief that such a notion reduces social responsibility quality. moreover, before getting into the ethical analysis of tobacco industry csr, we need to discuss the theoretical background to understand why the philanthropic model is no longer relevant to current ethical business progress. 24 boris holzer, moralizing the corporation: transnational activism and corporate accountability (cheltenham, northampton, ma: edward elgar, 2010). 25 teleological ethics refers to the doctrine of moral theory that requires a concession of one's conduct in its ends and its means. meanwhile, deontological can be described as a moral theory of one's behavior based on others' moral duty. 13 | indonesian journal of law and society a. against tokenistic form of csr csr was often seen as a problematic concept until the guiding instrument was proposed. disagreements on its definition and scope occur out of the multidimensionality aspect of the ethical theory. during the past few decades, theorists have attempted to invent a better, non-tokenistic form of csr for companies to apply. the traditional philanthropic model, trends that often appear in indonesian corporate culture, was no longer seen in line with ethical business transformation expectations. historically, scholars have invented the 'csr pyramid’ to determine the dimensional value within csr. caroll introduced his pyramidal model in which manifested within four levels of social responsibility, inter alia, economic, ethical, legal, and philanthropy in its top-level,26 whereas each level reflects a certain quality and public expectation attributed to the corporate existence. caroll viewed the philanthropic model as the hardest to implement. the company must willingly compromise to allocate some of the shareholder's revenue for a public interest, representing altruistic behavior. however, caroll’s pyramid that placed philanthropy as the ideal social responsibility model has been criticized, notably making csr merely transactional conduct. many multinational companies with strong financial resources are inclined to capitalize on the charity event as a call for attention to gain their interest. in the tobacco industry context, the csr trend often appears as a pseudo-commercial marketing attempt. it promotes the selling of products only in a different, socially altruistic way. decades later, visser, who identified the former theory's anomaly, developed a synthesis with a developing country perspective.27 the british scholar argues that the former model is only relevant in american business practices; meanwhile, developing countries have some contrast praxis influenced by specific socio-cultural differences. caroll's former theory that encouraged 26 archie b carroll, “the pyramid of corporate social responsibility: toward the moral management of organizational stakeholders” (1991) 34:4 business horizons 39–48. 27 wayne visser, corporate social responsibility in developing countries (oxford university press, 2009). 14 | the dark side of tobacco industry’s csr: a socio-legal analysis companies to do philanthropy acts produced more social problems than solving them. figure 2. visser's csr pyramid of developing countries visser gives an example of africa, where certain communities rely too much on csr funding from foreign companies. although the act can buy them a reputation to the company, yet to the community, the practice was far from empowering. therefore, visser made adjustments to the hierarchy so that the order becomes economic, philanthropic, legal, and ethical responsibility.28 it notes that the difference is in the position of philanthropic 28 each of the levels can be briefly described as follows: first, the economic responsibility. it remarks the bottom line to the firm social recognition. inspired by friedman's thesis of shareholder primacy principle, visser emphasizes the primary responsibility of a business firm reflects in its fair profitability. by being economically bona fide, social responsibility resides in the firm's existence and distribution within the economic cycle, for instance, by creating more jobs, paying employees, providing quality goods to society, and sort of things through the market fiscal return mechanism. second, the philanthropic responsibility. this dimension suggests the firm be charitable and engage with the community. despite its higher desirability from the recipient, philanthropy possesses minimum virtue quality for its common excess of creating anomalistic business practices like monopoly, collusion, or dominant position abuse. third, legal responsibility. here the social responsibility reflects in the firm voluntary compliance with all kinds of legal duty and obligations. presumably, any law-breaking conduct suggests an undermining social commitment of the company. the more the company lingers with legal disputes, the lower the social responsibility representation under such a theoretical perspective. fourth and residing at the top of visser's social responsibility pyramid is an ethical responsibility. being ethical means performing beyond legal compliance; the firm ethical responsibility legal responsibility philanthropy responsibility economic responsibility 15 | indonesian journal of law and society and ethical responsibility. according to visser, the former tradition is quite problematic in developing countries, while the latter deserves encouragement. the thesis of ethical responsibility emerges as a foundation to many other recent stakeholder theories of csr. it implies that csr's primary duty is to minimize any possible risk and impact that the business activity causes.29 the ethical maxim represents ‘good as a mean and as an end,' which suggests that the conduct should be performed based on a duty to solve related problems caused by the corporate activities. in contrast, the behavior should be exempted from self-interested motives in its ends. in this view, corporate philanthropy, driven by reputational intentions, does not naturally represent corporate social responsibility's ethical value. b. are the tobacco industry philanthropy campaigns ethical? the tobacco industry trend using csr has first emerged due to growing sentiments against the tobacco industry, which triggers the advertising restriction policy. since the 1960s, many authorities in developed countries have issued banning on mass media tobacco product advertisement. the shrinking advertising sphere drove big tobacco companies to find other methods for promoting the product. the csr eventually emerged as the favored method for its flexibility and capability to create social narratives that help recover the corporate image. history allows us to reveal the anomaly in the csr practice. the tobacco industry campaign's problem is that its implementation is somehow unrelated to core problems caused by the industry's existence. for example, when the tobacco industry donates money to a specific social charity event like a scholarship or music event, the conduct has no relevance with the core risks that emerged from the business activity. the genuine csr should act all its value creation activity ethically. the firm is expected to take all of its stakeholders' interests into adequate consideration in every business decision. 29 andrew crane, dirk matten, laura j. spence, corporate social responsibility: readings and cases in global context (london: routledge, 2008) at 3-20. 16 | the dark side of tobacco industry’s csr: a socio-legal analysis implementation should be performed in line with the duty to minimize impact, which, in this case, the excessive smoking problems resulting from the industry's expansive activity. instead of donating money, the primary duty is to raise better consumer awareness on the harmful effect of the product or provide curative medical treatment for nicotine addicts. on this, tandlittin and lutge suggest: “… their (indonesian tobacco corporations) csr activities did not provide scientific-based information about the deadly effects of cigarettes on smokers and secondhand smoke on non-smokers. none of the csr activities disseminated the fact that tobacco-related diseases cause high healthcare costs and that half of the smokers died prematurely. in contrast to public health, the tobacco companies' csr activities precisely focused on environmental sanitation, blood donation, and rural water supply. these activities are not related to tobacco-related diseases among smokers."30 similarly, the other problem with philanthropy manifestation appears in its inherent ‘transactional’ nature. the conduct is often misused as a gratification tool to buy out public sympathy—identical to the 'greenwashing' term in the extractive sector. it serves to overthrow the industry's dark footprint.31 such transactional fashion would promote a moral decadency, mostly if the csr fund recipients were state officials— which encourage gratification rather than a responsible corporate culture. meanwhile, in its ends, the main motive of tobacco industry philanthropy mostly not to be socially responsible; instead, the motive is mainly based on self-interested ends, that is, to secure the market dominancy. in praxis, many precedents indicate decadent reasons for philanthropy as it manifests in the form of a political campaign donation, which generates a conflict-of-interest potency. frequently, the tobacco money footprints appeared in the donor lists of political candidates contesting the election.32 such patronage attempts to trade influences between the business and the candidate 30 harsman tandilittin & christoph luetge, supra note 4. 31 ye cai, hoje jo & carrie pan, supra note 3. 32 alfian putra abdi, “icw: perusahaan rokok berpotensi beri sumbangan ke kandidat pemilu”, online: tirto.id <https://tirto.id/icw-perusahaan-rokok-berpotensiberi-sumbangan-ke-kandidat-pemilu-dcln>. 17 | indonesian journal of law and society policymaker on upcoming tobacco-related public policies. similarly, another manifestation of problematic tobacco industry philanthropy resembles community development projects. rosser suggests that the industry sows its interests by funding civil society organizations or communities to contest the tobacco control campaign.33 one apparent precedent indicates in the kretek campaign as cultural heritage narrated by the industry’s counterpart. allegedly funded by the industry, the interest groups produce misinformation articles to agitate anti-tobacco control in popular online platforms.34 in this view, by appearing in such a community-based look, the tobacco industry actor can flexibly promote the harmful product without having to worry about breaking the promotion limitation rule.35 the manipulating method also generates a pseudo legitimacy, displaying the industry as if it has been supported by society. the cultural propaganda resourced from csr funding has been many times successful in provoking excellent support, including from many public figures and political actors, even several times proposed in the legislative bill.36 from 2014 to 2018, the legislator insisted on proposing a controversial tobacco law bill in a priority list. in its article, the law requires the authority to, instead of issuing stricter restrictions against the expansive market, provide better protection and easier market distribution to kretek tobacco products, which will encourage even worst consumer regeneration.37 the conflict of interest and other excesses that appeared in the previous cases should explain why the who stood to declare any csr tobacco industry as inherently contradictive to the ethical foundation of responsible business practice. 33 andrew rosser, “contesting tobacco-control policy in indonesia” (2015) 47:1 critical asian studies 69–93. 34 for instance, www.komunitaskretek.com or www.bolehmerokok.com. 35 the existing legal substance only covers promotion restriction for the categorized subject of tobacco producer or importer. therefore, any non-subject might conduct the promotion. 36 "in its defense of kretek as cultural heritage, house warns of 'foreign claims,'" online: jakarta globe <https://jakartaglobe.id/news/defense-kretek-cultural-heritagehouse-warns-foreign-claims>. 37 indonesian house of representatives, naskah akademik ruu pertembakauan (jakarta: pusat studi hukum dan kebijakan, 2016). 18 | the dark side of tobacco industry’s csr: a socio-legal analysis v. mapping problems in the existing tobacco industry csr regulation the existing csr regulation problem emerges from allowing the tobacco industry to conduct csr under the pseudo-commercial display. however, the legal approach contradicts global tobacco control progress, which encourages a ban on any direct or indirect tobacco commercial, including csr. with specific adjustments made by the industry, the csr events ultimately become a soft-selling technique. the existing article 36 of government regulation no. 109 of 2012 suggests that tobacco companies can perform csr in the form of sponsorship under these two conditions: (a) not using the trademarked names and logos of tobacco products, including brand images, and (b) not intending to promote tobacco products.38 however, the problem is that no apparent difference between sponsorship and csr except that the law forbids the media coverage for the first, while the latter is allowed. the former description suggests several identifiable problems within the regulation logic. first, the regulation allows csr in the form of sponsorship, yet it restricts the promotional intention on the other side. the paradox emerges because the very definition of sponsorship is inseparable from promotional activity. in contrast, article 1(8) of government regulation no. 109 of 2012 defines sponsorship as: “all forms of direct or indirect contributions in the form of funds or otherwise using a variety of activities conducted by institutions or individuals, to exert influence through promotion or use of tobacco products.” emphasizing the objective of sponsorship for promotion interest, csr in such form inevitably contradictive with non-promotive manner. in this view, never have the industry ever employ non-promotive fashion as long as the sponsorship method allowed. additionally, the publicity rule suggests the other paradox because enabling the media to cover the csr, some kind of economic value that the publicity derives will inevitably make the conduct commercial. 38 government regulation no. 109 of 2012 on safeguarding tobacco addictive substances. 19 | indonesian journal of law and society secondly, in a practical context, the current regulation encourages a motivational shift of social responsibility, from what should have been a genuine ethical commitment to an economic-related purpose. it contradicts the ethical philosophy, but such an excess also drives a tendency to a more csr transactional model: it promotes a capitalization of social responsibility. as previously stated, such a ceremonialism campaign is not ideal for the industry for diverting the business's awareness of risks. however, the current regulation opens up more possibility to decadency due to the minimalism approach because it contradicts the effort to limit tobacco exposure. admittedly, allowing such a pseudo-commercial csr will trigger massive migration from conventional commercial to the latter method. additionally, it will also contradict the attempt to minimize the sphere of tobacco exposure, which emerges as the primary cause for consumer regeneration. a. the price of minimalist approach: the djarum vs. kpai polemic because the government regulation no. 109 of 2012 only narrowly classifies tobacco industry subjects in its two criteria (the producer and/or the importer), the excluded categories are neither a producer nor an importer, consequently exempted from the subject of this regulation. as a fair comparison, the fctc approach employs broad categories of parties involved throughout the value chain process, from material suppliers to final marketing agents and the tobacco industry subject. nobody can perform any kind of promotional campaign that contradicts the law. due to indonesia's minimalist subject scope, the industry can easily manipulate the previous csr requirement in government regulation no. 109 of 2012 by arranging separate categorical entities, for instance, a foundation, to conduct pseudocommercial philanthropy. the recent dispute between djarum foundation and kpai (indonesian committee for child protection) indicates one precedent.39 39 tirto.id, “audisi pb djarum pamit dan kronologi polemik yang picu teguran kpai”, online: tirto.id <https://tirto.id/audisi-pb-djarum-pamit-dan-kronologipolemik-yang-picu-teguran-kpai-ehhl>. 20 | the dark side of tobacco industry’s csr: a socio-legal analysis the issue emerged after the committee summoned djarum for allegedly performing child objectification for requiring adolescent participants to wear ‘djarum badminton club' apparel. however, the rule is clear that no trademark names or logo associated with (united nations, 2011) tobacco products allowed in any csr activities. in this case, djarum argued that they do not violate the rule because the event organizer was a foundation that does not meet the tobacco industry subject's definition. figure 3. portrait of adolescents participating in djarum foundation sport audition csr40 djarum responded to the warning with blackmail to call off their annual audition permanently. djarum’s call immediately attracted huge controversy in social media because seemingly the vast majority did not wish djarum to stop the audition, which has been famous for its contribution to producing talented local athletes' names. as the media was involved, the polemic quickly escalates, and the committee, on the contrary, being the one, received vast criticism for problematizing the issue. even on twitter, the tagline of #bubarkankpai (disband kpai) was a trending topic for two days 40 image source: https://www.moeslimchoice.com/assets/images/news/2019/09/20190 915120001_normal.jpg 21 | indonesian journal of law and society in a row, signifying that the committee was instead blamed by the public for the audition's call-off.41 here we can see the anomaly generated by the hegemony from the former case. although, in this case, djarum breaches the trademark use restriction, they were free from getting any charge. the law logic employs only the tobacco industry subject, despite no clear distinction on its trademark name and the foundation as the two use the same djarum name. additionally, the case also reveals that djarum social responsibility's hegemonic influence excellently operates to strip off the mass's critical thinking. despite the severe violation, the tobacco giant is defended by its partisans to contribute to national sports achievement. however, such an apology is irrelevant and undermining the more substantial problem of child exploitation. regardless of whom acted as an event organizer, djarum inevitably received economic benefits from the trademark publication. furthermore, the hegemonic influence, too, appears in the gesture of the central java governor. instead of penalizing the action as mandated in article 38 of government regulation no. 109 of 2012, the governor, as expected, turned to back to defend djarum by glorifying djarum’s virtuous contribution as the justification.42 after all, the precedent explains why in many tobacco csr controversies, holding the suspect liable is a difficult job—facing the company and its partisans created by the hegemony. such anomaly resulting from the latent encounter of minimalism regulation approach and the hegemonic influence provokes the society's permissive cultural tendencies. 41 arbi anugrah, “#bubarkankpai trending di twitter, kpai angkat bicara”, online: detiknews <https://news.detik.com/berita-jawa-tengah/d-4698850/bubarkankpaitrending-di-twitter-kpai-angkat-bicara>. 42 “gubernur jateng bela pb djarum gelar audisi”, online: cnn indonesia <https://www.cnnindonesia.com/olahraga/20190909153045-170-428802/gubernurjateng-bela-pb-djarum-gelar-audisi>. 22 | the dark side of tobacco industry’s csr: a socio-legal analysis b. the turn of business and human rights regime one critical question emerges after observing problems in the existing regulations: can the tobacco industry ever be socially responsible? over the past decade, international communities initiated numerous attempts to advocate human rights interests into social responsibility instruments. the attempt produces two outcomes, (1) the iso 26000 on social responsibility and (2) the united nations guiding principle on business and human rights. among the two guiding instruments, the latter become the most referred guiding instrument for internalizing social responsibility practices onto a human rights framework. despite its voluntary basis, the guiding instrument may offer a better, alternate solution to resolve previous csr problems emerging from the troubled government regulations. in line with the arising ethical responsibility concept, the guiding instrument's central thesis suggests that the social responsibility principle's reflective nature should be internalized within daily business activities. in such a perspective, philanthropy does not solely represent valuable social responsibility. whereas in its foundation, the instrument's articles stipulate that the business firm must perform adequate effort action to protect, in respect to the civil and political rights covenant and the economic, and to fulfill the rights in the covenant of economic, social and cultural rights sphere. the guiding instrument requires practical to conduct the business firm should comply voluntarily, from actively avoiding harmful excesses, continually identifying impacts, detecting vulnerable groups, and providing adequate remedies based on the former assessment. the firm is also encouraged to employ human rights due to diligence comprehensively to all of its activity. it is from the pre-production to post-consumption while making the assessment result accessible to the public; meaning, as the excess of the tobacco industry, links to many health and societal problems, the guiding human rights parameter should accord with the right to health. unfortunately, there is no report claiming that the indonesian tobacco industry ever employed such human rights due to diligence over their business activities. 23 | indonesian journal of law and society perhaps, the reason comes from the economic aspect that the industry presumably avoided the assessment as it will impose more risks of allocating budget to remedy numerous victims of addiction. the former financial burden, to some extent, explains why the philanthropy primarily addressed to fund unrelated sectors such as education or pop-culture event, instead of health sectors, to draw away the concern about health effects. c. can tobacco industry ever be socially responsible? nevertheless, the core human rights issue did not emerge because tobacco companies do not comply with the voluntary human rights assessment. on the contrary, the core human rights problem resides within the harmful industry nature: the products that the industry supplies into the market are medically proven dangerous to consume.43 debates emerged on the topic that splits dualism views. despite the product’s harmful effect on health, tobacco industry supporters often argue that the tobacco industry did not violate human rights. they claimed that the products were sold in a free market where consumers can exercise free will to decide whether to buy the product. accordingly, had the health risk eventually emerged, the consumers have admitted consenting to the consequences in the first place. to counter the public health concern, the partisan also highlights the industry's role in creating employments, empowering local farmers, and significantly increasing national income. in this view, the economic benefits contribute to the common welfare. hence, the tobacco industry's social responsibility towards human rights goals, as the proponent claims, is performed within this cycle. the opposing groups, however, saw radically different. the former apologetic belief undermines the issue for considering the problem only in a narrow economic paradigm. regardless of the consumers’ right to choose, the addictive product scientifically stimulates physical dependency causing acute addiction to the user. subliminal marketing attempts covertly 43 world health organization, "tobacco industry and corporate social responsibility: an inherent contradiction" (2004) (who tobacco control papers), online: <https://escholarship.org/uc/item/6kf7q7v9>. 24 | the dark side of tobacco industry’s csr: a socio-legal analysis manipulated consumer behavior so that the free will of the consumer exists. both conditions drive the smokers to buy the product out of irrational wants instead of needs, which explains why the commodity-linked as suspects to poverty problems. next, in terms of economic contribution, the cons also reject the myths of the tobacco industry's advantages. given the adverse socio-cultural consequences, the cons reveal that the aftermath of the excessive smoking phenomenon is causing more economic damage than it generates. the ministry of health reported the immaterial loss caused by the smoking fever was up to rp4,180 trillion, or nearly one-third of the nation’s gross domestic product (gdp)44; yet not to mention the material loss linked to the excessive smoking habit, which led to the health sector deficits caused by the medical bill overclaims. this projection strongly falsifies the proponent's claims on economic advantages. instead of solving the problems, the industry's presence is causing even more social issues. from a human rights perspective, the unethical business does not deserve the socially responsible predicate. its very own business core contradicts the human rights ends. simultaneously, retaining the toxic relationship between the government and the tobacco industry should indicate an omission of the state's obligation to protect and fulfill public health as a fundamental human right. vi. conclusion csr plays a crucial role in constructing the tobacco industry hegemony. the problem resulted from the accumulation of both existing legal and social issues. first, the csr anomaly emerges due to a misconception in the existing government regulation no. 109 of 2012 on safeguarding tobacco addictive substances. the flexible publicity rule allows the tobacco industry to capitalize csr campaigns as an alternative commercial method, saving them from the shrinking sphere of advertising. additionally, the current regulation only covers a minimalistic category of the tobacco industry so that 44 indonesian ministry of health, perilaku merokok masyarakat indonesia: berdasarkan riskesdas tahun 2007-2013 (jakarta: pusat data dan informasi kemenkes, 2013). 25 | indonesian journal of law and society it does not reach the csr practice done by non-categorized tobacco industry affiliation’s entity. secondly, in the social context, the hegemony works by normalizing tobacco industry domination's status quo. grand narratives on the tobacco industry's economic contribution and social responsibility work subconsciously to influence the public sentiment to favor the industry despite the severe societal damages the industry sector has produced. ethically speaking, the tobacco industry philanthropy campaigns contradict the ethical dimension of social responsibility. the notion is not in line with its duty to remedy risks caused by its harmful products. an adequate backup from the global community is required to counter the established dogma from tobacco industry hegemony. accessing fctc should be a taken option to get out of the lethal hegemony and prevent the worsening demographic catastrophe. the fctc instrument can help indonesia overcome the situation since it offers a better, holistic approach throughout four spheres of issues: the legal substance, economical approach, health sector, and political sphere. references abdi, alfian putra. “icw: perusahaan rokok berpotensi beri sumbangan ke kandidat pemilu”, online: tirto.id <https://tirto.id/icw-perusahaanrokok-berpotensi-beri-sumbangan-ke-kandidat-pemilu-dcln>. anugrah, arbi. “#bubarkankpai trending di twitter, kpai angkat bicara”, online: detiknews <https://news.detik.com/berita-jawatengah/d-4698850/bubarkankpai-trending-di-twitter-kpai-angkatbicara>. banakar, reza & max travers, eds. theory and method in socio-legal research, oñati international series in law and society (oxford; hart pub, 2005). bourdieu, pierre. the social structures of the economy (cambridge, malden, ma: polity, 2005). 26 | the dark side of tobacco industry’s csr: a socio-legal analysis cnn indonesia. “gubernur jateng bela pb djarum gelar audisi”, online: cnn indonesia <https://www.cnnindonesia.com/olahraga/ 20190909 153045-170-428802/gubernur-jateng-bela-pb-djarum-gelar-audisi>. erlangga djumena. “secercah asa di tengah ancaman resesi halaman all”, online: kompas.com <https://money.kompas.com/read/2020/04/ 25/211100526/secercah-asa-di-tengah-ancaman-resesi>. fauzi, ridwan et al. hubungan terpaan iklan, promosi, sponsor rokok dengan status merokok di indonesia (jakarta: tobacco control support center & iakmi, 2019). gramsci, antonio. quintin hoare & geoffrey nowell-smith. selections from the prison notebooks of antonio gramsci (london: lawrence & wishart, 1971). holzer, boris. moralizing the corporation: transnational activism and corporate accountability (cheltenham, northampton, ma: edward elgar, 2010). hirschhorn, n. “corporate social responsibility and the tobacco industry: hope or hype?” (2004) 13:4 tobacco control 447–453. hurt, richard d et al. “roadmap to a tobacco epidemic: transnational tobacco companies invade indonesia” (2012) 21:3 tob control 306– 312. indonesian house of representatives. naskah akademik ruu pertembakauan (jakarta: pusat studi hukum dan kebijakan, 2016). indonesian ministry of industry. “gambaran umum industri rokok”, online: kementerian perindustrian <https://www.kemenperin.go.id/ gambaran-umum-industri-rokok.php>. indonesian ministry of industry. “kemenperin: kontribusi besar industri hasil tembakau bagi ekonomi nasional”, online: kementerian perindustrian ri <https://kemenperin.go.id/artikel/17257/kontribusibesar-industri-hasil-tembakau-bagi-ekonomi-nasional>. indonesian statistics bureau. profil kemiskinan di indonesia tahun 2019, no. 56/07/th.xxii (jakarta: badan pusat statistik, 2020). 27 | indonesian journal of law and society jakarta globe. "in its defense of kretek as cultural heritage, house warns of 'foreign claims," online: jakarta globe <https://jakartaglobe.id/ news/defense-kretek-cultural-heritage-house-warns-foreign-claims>. jayani, dwi hadya. “tren kenaikan cukai rokok, 2020 catat kenaikan tertinggi”, online: databoks <https://databoks.katadata.co.id/data publish/2019/09/16/tren-kenaikan-cukai-rokok-2020-catatkenaikan-tertinggi>. mcdaniel, patricia a & ruth e malone. "what is our story? philip morris's changing corporate narrative" (2015) 105:10 am j public health e68–e75. nichter, m et al. “reading culture from tobacco advertisements in indonesia” (2009) 18:2 tobacco control 98–107. nurhasim, ahmad. “183 negara setuju fctc, jokowi: indonesia jangan ikut-ikutan”, (14 june 2016), online: tempo <https://nasional.tempo. co/read/779728/183-negara-setuju-fctc-jokowi-indonesia-janganikut-ikutan>. palazzo, guido & ulf richter. “csr business as usual? the case of the tobacco industry” (2005) 61:4 j bus ethics 387–401. patanavanich, roengrudee & stanton a glantz. “smoking is associated with covid-19 progression: a meta-analysis” (2020) 22:9 nicotine tob res 1653–1656. putra, afdal makuragga. “aku merokok maka aku berpetualang: konstruksi pesan dan resepsi khalayak terhadap iklan-iklan rokok djarum super versi petualangan” in bunga rampai ilmu komunikasi (yogyakarta: litera press, 2017) 225. rosser, andrew. “contesting tobacco-control policy in indonesia” (2015) 47:1 critical asian studies 69–93. tandilittin, harsman & christoph luetge. “csr activity of tobacco companies in indonesia: is it a genuine social responsibility?” (2015) 11 ojhe, online: <http://aquila.usm.edu/ojhe/vol11/iss1/3>. 28 | the dark side of tobacco industry’s csr: a socio-legal analysis the jakarta post. “‘smokers in indonesia are at high risk for covid-19’: who”, online: the jakarta post <https://www.thejakartapost.com/ life/2020/03/14/smokers-in-indonesia-are-at-high-risk-for-covid-19who.html>. tirto.id. “audisi pb djarum pamit dan kronologi polemik yang picu teguran kpai”, online: tirto.id <https://tirto.id/audisi-pb-djarumpamit-dan-kronologi-polemik-yang-picu-teguran-kpai-ehhl>. urban dictionary. "urban dictionary: corporate hegemony," online: urban dictionary <https://www.urbandictionary.com/define.php? term= corporate%20hegemony>. world health organization. “tobacco industry and corporate social responsibility an inherent contradiction” (2004) (who tobacco control papers), online: <https://escholarship.org/uc/item/6kf7q7v9>. microsoft word 2.docx indonesian journal of law and society (2021) 2:1 29-58 issn 2722-4074 | https://doi.org/10.19184/ijls.v2i1.22191 published by the university of jember, indonesia available online 03 march 2021 _____________________________ * corresponding authors’ e-mail: bosedelizabeth@gmail.com examining the reproductive rights in the wake of covid-19 pandemic in nigeria: an evolving issue of human rights regime nnawulezi uche alex ekwueme federal university ndufu-alike ikwo, nigeria bosede remilekun adeuti* ministry of justice, alagbaka, akure, ondo state, nigeria abstract: the prospect of achieving sustainable reproductive rights protection in the wake of the covid-19 pandemic in nigeria has remained an intractable problem. to identify and recognize reproductive rights, it is necessary to comprehend that reproductive right embraces certain human rights recognized in national and international laws, including international human rights’ documents. this paper examined the existing nigeria laws on reproductive and health rights and ascertained the extent to which it had continually and predictably addressed the reproductive rights protection problem. there was a significant protection gap in the national human rights architecture. at the international level, among the poorer adolescent girls between the age of 15-19 years, it frequently resulted in early pregnancy and, of course, unsafe abortion. thus, this gap related in particular to questions on lack of access to family planning services. this paper argued that improvement of reproductive and sexual health went far beyond the right to life and the right to health of women and girls. to guarantee nigeria's reproductive rights, a more integral response to these critical human rights and development challenges could address nigeria's protection gap. this paper adopted an analytical and qualitative approach by referring to existing pieces of literature achieved by the synthesis of ideas. this paper concluded that the adoption of a new approach to policies and programs on preventable maternal mortality and morbidity guaranteed the right to attain the highest standard of sexual reproductive health in nigeria. keywords: reproductive rights, health issues, covid-19 pandemic, nigeria. copyright © 2021 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions submitted: 22/01/2021 reviewed: 23/01/2021 revised: 01/02/2021 accepted: 11/02/2021 how to cite: uche, nnawulezi & bosede remilekun adeuti. “examining the reproductive rights in the wake of covid-19 pandemic in nigeria: an evolving issue of human rights regime” (2021) 2:1 indonesian journal of law and society 29-58. 30 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria i. introduction discussions on reproductive and sexual health rights have remained taboo in traditional african societies. simultaneously, the right to health has been an internationally recognized human right. after several years of the beijing conference,1 women have remained unable to control their sexual and reproductive health rights. there have been several cases of women's rights abuses, such as their lack of right to decide on their sexual health. indeed, nigeria recognizes the right to health through its commitment and obligations under international treaties and domestic legislation stipulating specific actions concerning its citizens' health.2 in light of the previous, inaccessibility of contraceptives has social, economic, and public health consequences, including the inability of women to protect themselves from hiv and other sexually transmitted infections as well as the inability to control their fertility reproduction.3 against this backdrop, this paper examined the existing nigerian laws on reproductive and health rights. it included ascertaining the extent to which it consistently and sustainably addressed the reproductive rights protection problem. this paper focused on sexual and reproductive health as a human rights issue essential in the wake of the coronavirus disease (covid-19) pandemic in nigeria. it enquired an effective change in protecting reproductive health rights, especially in the wake of this pandemic. it proffered answers to the following questions that must be resolved effectively in nigeria's reproductive health rights protection system. firstly, what is the nature and scope of reproductive health? then, what are the factors militating against the attainment of reproductive health rights in nigeria, especially in the wake of this virus pandemic? 1 o. nnamuchi, the right to health in nigeria, right to health in the middle east project, law school, university of aberdeen at 1. 2 ibid. 3 ibid. 31 | indonesian journal of law and society ii. methods 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, achieved by a synthesis of ideas. on the other hand, this approach was considered more appropriate because of the compelling need to have sustainable reproductive rights protection in nigeria, especially in the wake of the covid-19 pandemic. iii. definitions and contextual issues a. reproductive rights reproductive rights embrace certain human rights recognized in national laws, international laws, international human rights documents, and other consensus documents. however, these rights rest on recognizing the fundamental rights of all couples and individuals to decide freely and responsibly the number, spacing, and timing of their children and have the information and means to do so and the right to attain the highest standard of sexual and reproductive health. it includes the right to make decisions concerning reproduction free from discrimination, coercion, and violence, as provided in human rights documents.4 no single human rights instrument is dedicated to reproductive rights. instead, international, regional, and national human rights instruments protect the various elements of reproductive rights. according to the international conference on population and development program of action,5 reproductive rights are based on couples' and individuals' right to decide free from discrimination, coercion, and violence whether to have children, how often and when to do so, having the necessary information and means to make such decisions. reproductive rights are not a new set of rights. it is a combination of freedoms and entitlements that are already 4 see international conference on population and development program of action, united nation document a/conf.171/13 (1994). 5 ibid, para. 7(3) (1994). 32 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria recognized in national laws, international human rights instruments, and other consensus documents. admittedly, reproductive rights refer to a diversity of civil, political, economic, social, and cultural rights affecting individuals and couples' sexual and reproductive lives. it is essential to look briefly at some of the legal elements that together constitute reproductive rights. thus, the convention on the elimination of all forms of discrimination against women (cedaw)6 provides that states parties should ensure access to health care services, including those related to family planning and appropriate services related to pregnancy and the right to decide on the number and spacing of children.7 article 1 of the cedaw defines discrimination against women. article 2 sets out what states shall do to combat such discrimination. to date, nigeria has no social security system in this respect in a similar vein. the national health policy commits state and local governments to provide health subsidies for preventive care and additional public assistance for lowincome individuals. on the one hand, the pandemic has led to the suspension and restriction of these guaranteed rights due to lockdown. this restriction has not amounted to derogations since there are not enough health facilities in the rural areas as it were in the urban areas. has this imbalance not amounts to discrimination? the thrust of this argument is that non-discrimination is a core principle guiding the human rights system. in this context, every person has a right to enjoy human rights without discrimination. an amplification and clarification of the above position are provided under article 12 of the international covenant on economic, social, and cultural rights.8 further, the convention on the rights of the child also protects children’s right to the highest attainable standard of health9. this progressive 6 see the convention on the elimination of all forms of discrimination against women (1979). 7 article 12 and 16 of the convention on the eliminations of all forms of discrimination against women (1979). 8 article 12 of the international covenant on economic, social and cultural rights (1966). 9 article 24 of the convention on the rights of the child (1989). 33 | indonesian journal of law and society ideology on non-discrimination and equal treatment is explicit in article 2(2) of the international covenant on economic, social, and cultural rights10 which establishes the prohibition on discrimination, as would find in article 2 (1) of the convention on the rights of the child.11 similarly, other regional human rights treaties such as article 14 of the european convention on human rights,12 article 1 of the american convention on human rights13 and article 2 of the african charter on human and peoples rights14 all contained non-discrimination clauses. besides being widely held, it notably reflects the international convention on the elimination of all forms of racial discrimination.15it specifically prohibits discrimination based on race, color, descent, national or ethnic origin, and the convention on the rights of persons with disabilities.16 the current discrimination against women's right to control their fertility may be considered a fundamental issue that prohibits them from enjoying other human rights.17 however, this pandemic has led to several discriminatory practices against women. it has adversely affected their right to adequate, accessible, and affordable health services, including information, education, and communication programs to women, especially in the rural areas. it has violated the non-discrimination clauses of the cedaw. in practice, it is always those with the least access to reproductive rights that are adversely affected.18 10 article 2(2) of the international covenant on economic, social and cultural rights (1966). 11 article 2(1) of the convention on the rights of the child (1989). 12 article 14 of the european convention on human rights (1950). 13 article 1 of the american convention on human rights (1978). 14 article 2 of the african charter on human and peoples rights (1979). 15 article 1 international convention on the elimination of all forms of racial discrimination (1965). 16 articles 3, 5, and 6 of the international convention rights of persons with disabilities (2006). 17 c. rebecca, "international protection of women's reproductive rights," new york university journal of international law and politics, vol. 24, p.645, (1991-1992). 18 cedaw/c/49/d/17/2008. 34 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria b. sexual and reproductive health many questions arise regarding the definition of the above two concepts. however, these two concepts are interwoven. reproductive health is defined as follows: a state of complete physical well-being and not merely the absence of disease or infirmity in all matters relating to the reproductive system and its functions and process. in this sense, reproductive health implies having a satisfying and safe sex life and the capacity or freedom to decide. it includes when and how often to reproduce, prevent and treat sexually transmitted diseases, avoid unwanted pregnancies, and promote responsible sexual behavior.19 following the above approach, sexual and reproductive health is defined as a state of physical, emotional, mental, and social well-being with all aspects of sexuality and reproduction. it is dependent on the realization of sexual and reproductive rights, based on the principles of human rights.20a systematic understanding and interpretation of the two concepts show that both concepts overlap and support physiological functions. they are such as pregnancy and childbirth, aiming to reduce adverse outcomes of sexual activity and reproduction. before the 1990s, issues related to reproductive health focused on controlling women's fertility to diminish population growth, and not much more than that rests on a misunderstanding of the concept of reproductive health. in this context, health was the key entry point rather than reproductive wellbeing. according to the world health organization, sexual and reproductive health comprised of five key components such as: ensuring contraceptive choice and safety and infertility services, improving maternal and newborn health, reducing sexually transmitted infections, including hiv, and other reproductive morbidities, "eliminating unsafe abortion and providing post-abortion care; and promoting healthy sexuality, including adolescent health, and reducing harmful practices.21 19 world health organization, reproductive health. available at http://www.who.int/ topics/reproductive_health/ accessed august 8, 2020. 20 a.m. starrs accelerates progress sexual and reproductive health and rights for all: report of the guttmecherlancet commission. lancet (2018). 21 united nations population fund, sexual and reproductive health for all (2010). 35 | indonesian journal of law and society there are some specific interpretations on reproductive rights deal with protecting women's reproductive rights. however, women are more directly affected than their male counterparts by decisions for biological and social reasons. in other words, reproductive rights matters are essential to women. they affect women's mental and physical integrity, health and sexual autonomy, relationships, education, job training, ability to provide for families, and negotiating work-family conflicts in institutions organized based on traditional sex-role assumptions.22 on the one hand, the noninvolvement of men and boys in matters related to reproductive rights contributes to men's poor preparation for adulthood, contraceptive use, and safe sex.23 while it is by now mostly undisputed, men have a stake in reproductive rights through multiple roles as sexual partners. there remains some discussion as to men's sexual and reproductive health. typically, the response focuses on the men's urogenital infections, infertility, and erectile dysfunction, and prostate and testicular cancer.24 in the light of the nigerian interpretative statement on reproductive health and rights issues, the nigerian government focuses on achieving socially and economically productive lives.25 however, there is a strong argument that there is often not more than one nurse in rural health centers at any given time, and there are no doctors. sometimes, the nurses are forced to act as doctors. it has potentially significant implications, in particular, to access to comprehensive, quality reproductive health care services in nigeria. in any event, reproductive health and rights issues comprised rape, marital rape, incest, female genital mutilation, unsafe abortion, unwanted pregnancies, and maternal mortality. firstly, according to the provision of 22 r. b. siegal, sex equality arguments for reproductive rights: their critical basis and evolving constitutional expression), (2007) faculty scholarship series. paper 1137. 23 k. anant, “role of males in reproductive and sexual health decisions” (2007) the bihar times. 24 see united nations population fund, "male involvement in reproductive health, including family planning and sexual health technical report no. 28, (1995). 25 federal ministry of health, the national health policy, and strategy to achieve health for all nigerians (1988). 36 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria the criminal code act,26 rape is an unlawful carnal knowledge of a woman or a girl without her consent or with her consent if the consent is obtained by force or through threat or intimidation of any kind, or by fear of harm, or using false and fraudulent misrepresentation as to the nature of the act, or in the case of married women, by personating her husband. the offense of rape is a violation of the victim's bodily integrity and the right to sexual security. at the same time, it also exposes the female to health rights such as unwanted pregnancies and sexually transmitted infections, and/or hiv/aids. this virus becomes a critical aspect of the sexual and reproductive health and rights challenge. access to quality sexual and reproductive health care services is crucial for women and men living with hiv and aids. however, this general position is considered relevant because sexual and reproductive health programs can make an essential contribution to hiv prevention, treatment can and support. in this sense, sexual and reproductive health services are essential for those living with hiv and aids.27 secondly, unsafe abortion or even more significant concern is the abortion performed under hazardous conditions through wrong instruments and medication. it may lead to complications, such as perforation of the womb, inability to conceive, marriage, and premature birth. it suggests significant negative health implications for women and girls as their reproductive health concerns are not catered for on issues of abortion. in nigeria's bifurcated criminal law system, abortions are illegal regardless of pregnancy duration. both legal systems prohibit abortions performed at all stages of fetal or embryonic development from the time of fertilization unless the abortion is performed to save a pregnant woman's life.28 criminal code in southern nigeria stipulates that a person is not criminally responsible for performing good faith and reasonable care and skill a surgical operation upon an unborn 26 nigeria criminal code act, laws of the federation of nigeria (1990). 27 b. marge, "hiv/aids, sexual and reproductive health: intersections and implications for national programs," health policy and planning 19, suppl. 1 (oxford university press, 2004). 28 see section 228 of the nigerian criminal code (1990) section 232 of the penal code (1960). 37 | indonesian journal of law and society child to preserve the mother's life.29 similarly, the penal code applicable in the northern states of nigeria permits abortion to save a woman's life.30 given a wide range of the criminal justice system applicable to abortion, the laws do not clearly distinguish between abortions performed by registered medical practitioners and unregistered medical practitioners, nor do they stipulate the kind of facility in which abortions may take place. thirdly, early and forced marriage is another issue that has been raised in respect of reproductive health and rights. it is also worth mentioning that the national policy on population discourages early marriage and states that parents should not arrange marriages for girls below eighteen.31 from an operational perspective, the critical point can be expressed as in nigeria today. there are several conflicting laws relating to early marriage. for instance, in the eastern states of nigeria, the legislation prohibits marriage contracts between persons under the age of sixteen years and, of course, declares illegal marriage.32 similar concerns have already been expressed that the civil law provides parties to a valid civil law marriage of marriageable age" was not defined in this context. however, adolescents under the age of twenty-one cannot marry without parental consent under civil law.33 it is important to note that the marriage act does not specify any minimum age limit. instead, it merely states that unless a party is a widow or widower. there is a need to obtain the parents' written consent or the guardian, where such a person is under twenty-one years. the act further provides: because the written consent required by this ordinance has not been obtained, whoever shall marry or assist or procure any other persons to marry a minor under the age of twenty-one years, not being a widow or widower, shall be liable to imprisonment for two years.34 29 see section 297 of the nigerian criminal code (1990). 30 see section 235 of the penal code (1960). 31 see nigerian national policy on population for development, unity, progress and self-reliance 1 (1988) (national policy) at 14. 32 see sections 2-4, 6 (chapter 6) of the laws of eastern region of nigeria (1963). 33 see sections 18-20, 48 of the marriage act. 34 see laws of the federation of nigeria, (1990) cap. 220. 38 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria some might argue that irrespective of these provisions, it is surprising that the act did not specify a minimum age for marriage. it is problematic for two reasons. first, the inference to be drawn from these provisions is that a person above 21 years old should not comply with obtaining consent. second, a person under 21 years old and hence "a minor," but who has become a widow or widower should not comply with the requirement for obtaining consent. however, the subsequent matrimonial causes act 1970, which should have set matters right, failed to do so. it merely provides for the invalidation of a marriage where "either of the parties is not of marriageable age."35 in particular, both the marriage act and the matrimonial causes act (mca) 1979 seem to encourage, as the indigenous customary law, the obnoxious practice of child marriage. it refers to a statutory marriage that will be valid if parental consent was obtained in writing for a female's marriage still in her teens. also, the absence of common minimum age, even by implication, for marriage under customary law further highlights the marriage act's flows with it. besides, it is uncontroversial that when parental consent validates a female child's marriage between the age of fourteen and sixteen. the question is raised as to the effect of section 221 of the criminal code, which states that the defilement of a girl under the age of sixteen years but above thirteen years is an offense.36 in this respect, the case of agbo v. udo37 is an authority that failure to obtain the requisite consent before the marriage neither invalidates the marriage already celebrated nor makes for the prosecution under section 49 of the person involved. the failure on the part of the draftsman of the matrimonial causes act, 1970 to provide a minimum age for statutory marriage leaves much to be desired of the statute and the calls for a reform of the marriage act. unarguably, it is essential to state that the growing number of violent conflicts worldwide today has been accompanied by an increase in sexual violence targeting women and girls and an increase in internationally displaced persons (idps) and refugees, which the majority of whom are 35 s. 3(e) of the matrimonial causes act (1970). 36 section 221 of the criminal code laws of the federation of nigeria, (1990) cap. 77. 37 (1947) 18 nlr, 152. 39 | indonesian journal of law and society women and children. according to the united nations high commissioner for refugees (unhcr), there are nearly 60 million forcibly displaced people worldwide, and 13-9 million were nearly displaced due to conflict and persecution in 2014. this paper noted that access to obstetric and antenatal care for pregnant women, access to safe abortion and post-abortion care, especially for survivors of sexual and gender-based violence, are among the most pressing issues facing women by conflict or pandemic like coronavirus. similarly, it has been observed that young women and girls affected by conflict or pandemic faced an increased risk of physical and sexual violence. this includes an increase in the child, early and forced marriage due to a lack of economic resources and because families view this practice as a way to "protect" their daughters. according to the united nations children's fund (unicef), the rate of child marriage among syrian refugee girls in jordan rose to 32% in 2014, compared to an average of 13% in syrian before the war. therefore, women and girls also faced increased risks of sexual violence, including rape, sexual assault, forced pregnancy, forced abortion, trafficking, forced marriage, and forced prostitution. c. covid-19 pandemic to understand the term covid-19 as used in this paper, it is essential to explore the above term is commonly referred to "coronavirus disease 2019". covid-19 is a new disease, and details of its spread are still under investigation.38 it must be emphasized that the ongoing covid-19 pandemic is caused by severe acute respiratory syndrome coronavirus 2 (sarscov2).39 the outbreak of this pandemic was first identified in wuhan, china, in december 2019.40 in this regard, the first step taken by the world health organization (who) was to declare the outbreak a public health emergency of international concern on 39th january 2020 and 38 world health organization, "coronavirus very likely of animal origin, no sign of lab manipulation" reuters april 21, 2020, accessed may 19, 2020. 39 world health organization, "novel corona virus – china" accessed on may 2020 40 see "the world health organization director – general's opening remarks at the media briefing on covid-19, march 11, 2020" accessed may 19, 2020. 40 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria a pandemic on march 11.41 however, available research has shown that as of may 17, 2020. more than 4.66 million cases of covid-19 have been reported in more than 188 countries and territories, resulting in more than 312,000deaths. more than 1-7 million people have recovered.42 the virus is primarily spread between people during close contact, often via small droplets produced by coughing, sneezing, and talking.43 it is most contagious during the first three days after the onset of symptoms. however, the spread is possible before symptoms appear and from people who do not show symptoms.44 common symptoms include fever, cough, fatigue, shortness of breath, and loss of smell.45 also, complications may include pneumonia and acute respiratory distress syndrome.46 it is worth noting that exposure to onset of symptoms is typically around five days but may range from two to fourteen days.47 more importantly, there is no known vaccine or specific antiviral treatment. thus, primary treatment is symptomatic and supportive therapy.48 it is clear that the pandemic has caused the severe global economic disruption.49 it includes the most extensive global recession, which has led to the postponement or cancellation of sporting, religious, political, and cultural 41 see "covid -19 dashboard by the centre for systems science and engineering at john hopkins university", arcegis john hopkins university accessed may 19, 2020. 42 see centres for disease central spreads", april 2, 2020. accessed may 19, 2020. 43 j. hopkins, "loss of sense of smell as a marker of covid-19 infection". ear, nose and throat surgery body of the united kingdom 2020. accessed may 19, 2020. 44 united states centre for disease control and prevention, "corona virus disease 2019 (covid-19) symptoms" march 20, 2020, accessed may 19, 2020. 45 see united states centres for disease control and prevention, "interim clinical guidance for management of patients with confirmed coronavirus disease. (covid-19)" april 4, 2020, accessed may 19, 2020. 46 united states centres for disease control and prevention, "symptoms of novel coronavirus (2019-ncov)" february 10, 2020, accessed may 10, 2020. 47 t.p valavan and c.g meyer, “the covid-19 epidemic” tropical medicine and international health 25(3) (200) at 278-280. 48 international monetary fund report on covid-19, “the great lockdown: worst economic downturn since the great depression” 2020. 49 the yew york time, "a list of what has been canceled because of the coronavirus" the new york times acceded may 19, 2020. 41 | indonesian journal of law and society events.50 it widespread shortages exacerbated by panic buying51 and decreased emissions of pollutants and greenhouse gases.52 the further implications of this pandemic were the closure of schools, universities, colleges, and churches either on a nationwide or local basis in 186 countries, affecting approximately 98.5 percent of the world's student population.53 it is important to emphasize that the general notion about this virus has spread online.54 there has been an incidence of xenophobia and discrimination against chinese people and against those perceived as being from high infection rates. the pandemic has resulted in many conspiracy theories and misinformation about the pandemic scale and the origin, prevention, diagnosis, and treatment of the disease. iv. effective-control fest of the nigeria’s health policy instrument nigeria's health policy instrument is to achieve health for all nigerians to enable all nigerians to achieve socially and economically productive lives.55 this idea denotes the "legal mechanism" by which health care policies and subsidies for preventive care are implemented through the primary health care (phc) approach. the assumption underlying this idea is that primary health care will encompass essential treatment, including maternal and child health and family planning services.56 this progressive ideology was explicit in 1992 when the importance of the primary health care (phc) 50 s. jade, "why there will soon be tons of toilet papers, and what food may be scarce, according to supply chain exports." march 18, 2020. 51 j. watts and n. kommenda, "coronavirus pandemic leading to the huge drop in air pollution" the guardian newspaper (london, march 23, 2020). 52 united nations educational, scientific, cultural organization (unesco), "covid-19 educational disruption and response" march 4, 2020, accessed may 19, 2020. 53 r. clamp, "coronavirus and the black death: spread of misinformation and xenophia shows we have not learned from our past" march 5, 2020. 54 s. tavenise and r.a oppel, "spit on, yelled at, attacked: chinese americans fear for their safety" the new york times (new york, march 23, 2020). 55 the national health policy and strategy to achieve health for all nigerians (health policy) (1988). 56 national health policy and strategy (1988) at 9-10. 42 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria system was reinforced by the establishment of the national primary health care development agency. 57 this was a fundamental feature of a stable regenerative order. it was necessary to seek to implement the national health policy by revising existing health policies. if it was necessary, it included translating policies into feasible strategies and providing technical support to the primary health care management system.58 the dual nature of necessity is essential to nigeria's primary health care system. while the federal ministry of health coordinates the national health care policies, establishes a service delivery guideline, and coordinates state governments and the private sectors, the local government provides primary health care under the state ministry of health.59 nigeria's extent health policy as outlined in the national health policy and its strategy does not rely on a subjective perception of the prevailing situation. however, they are on an objective determination based on promotive, preventive, restorative, and rehabilitative at ensuring a socially and economically productive and fulfilling life to every nigerian. in this regard, the who's policies become a strategy for realizing primary health care as elaborated in alma ata's declaration.60 besides the operational deficiencies of the national health policy, it is not anywhere near actualization. each component unit represents an effective health system's essential components. if carefully developed and implemented, it would go a long way in ameliorating the current system's inadequacies in nigeria. an effective health care system is an essential concept. it substantiates and specifies the national health policy and strategy to achieve health for all nigerians, lying at the heart of the definition of health for all nigerians. however, it is very much open to question. it enquires whether other national policies that promote reproductive health constitute the critical policy frameworks that seek to achieve quality reproductive and sexual health 57 decree no 29, the national primary health care development agency, pt.1 (1992). 58 ibid, section 3 (a), (b). 59 see constitution of the federal republic of nigeria (1999) fourth schedule section 2c on health policy. 60 right to healthcare, available online https://www.righttohealthcare.org/docs/ documentsc.htm> accessed august 11, 2020. 43 | indonesian journal of law and society for all nigerians. these policies are the national reproductive health policy and strategy of 2001, the national policy on hiv/aids of 2003, the national policy on women of 2000, and 2004, national policy on the elimination of female genital mutilation, 1998 and 2002, the national adolescent health policy, 1995, national policy on maternal and child health, 1994, and the national policy on population for development unity, progress and self-reliance, 1998 and 2004. the government's policy steps and revised at different times are ineffective. however, they follow the spirit of the international and regional instruments promotive of reproductive health and contraceptive rights, for which nigeria is a state party. a human rights-based approach to addressing sexual violence and sexual and reproductive rights violation in conflict or pandemic situations recognizes and addresses the root causes of such violations to prevent better and eradicate these practices. however, this approach would take stock of legal protection gaps and harmful policies in national contexts that need to be changed. it reaffirms the state's obligations under human law and clarifies the positive measures states should take to ensure women's access to sexual and reproductive health services. a. reproductive rights violation under covid-19 pandemic in nigeria in light of the outbreak of the covid-19 pandemic in nigeria, it asserts that president muhammad buhari relying on the quarantine act,61 the section under consideration and section 45 of the constitution62 suspended the rights to freedom of movement, assembly, and association in all parts of nigeria in the interest of public safety, aimed at curtailing the spread of this pandemic. at the section 45(2) of the constitution,63 the apex law stipulates that an act of the national assembly shall not be invalidated because it provides for the taking, during a period of emergency, of measures that derogate from the provision of sections 33 to 35 of the constitution.64 61 nigerian quarantine act (2004). 62 section 45 of the constitution of the federal republic of nigeria (1999). 63 ibid, section 45(2). 64 ibid, sections 33 to 35. 44 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria also, the constitution goes further to define a period of emergency. it is a period during which there is in force a proclamation of a state of emergency declared by the president in the exercise of the power conferred on him by section 305 of the constitution.65 therefore, it has become necessary to examine the section above 305 of the constitution extensively to comprehensively examine how citizens' reproductive rights and other human rights can be restricted or suspended during the covid-19 pandemic. however, various fundamental rights regimes are in operation in nigeria, which frequently overlapped. while it is clear that nigeria is comprehensively bound by the entire provisions of chapter four of the constitution,66 the applicability of the domestic fundamental rights under the covid-19 emergency restrictions orders remains controversial. this notwithstanding, these rights that have been violated are the right to life. b. right to life and health it is submitted here that the right to life is deemed sacrosanct and can only be derogated from in the rarest of circumstances. however, section 33 of the constitution67 provides that every person has the right to life save in executing a criminal offense. he has been founded guilt in nigeria or defense of oneself, others, or property. notably, the right to life and health is central to the enjoyment of all other human rights. access to contraceptive information and services bears directly on the enjoyment of these rights. it is submitted that the right to life should not be narrowly interpreted.68 the fulfillment of this right requires governments to take steps to reduce maternal mortality and increase life expectancy.69 in a similar vein, the notion of the right to life and health under the committee on economic, social and cultural rights and the convention 65 see section 305 of the constitution of the federal republic of nigeria (1999). 66 see chapter iv of the constitution of the federal republic of nigeria (1999). 67 ibid, section 33 of cfrn (1999). 68 article 6, right to life, human rights committee, general comment 6 (16th session, 1982) in the compilation of general comments and recommendations vol. 1, p. 176, para. 1 un. doc (2008). 69 ibid, para. 5. 45 | indonesian journal of law and society on the elimination of discrimination against women committee recognizes the right to health includes sexual and reproductive health70 and that contraceptive information and services are vital elements to fulfill this right.71 also, it is submitted that the constitution of the federal republic of nigeria72 also provides for the right to life with exceptional cases.73 thus, the functional approach to protecting reproductive health rights implies the government must make available affordable contraceptive services and commodities. these measures aim to prevent the high rate of contraction of the hiv epidemic or this novel coronavirus. they must ensure that their anti-retroviral drugs and palliatives are available to persons living with hiv/aids and persons who may have contracted coronavirus living in isolation centers or on self-isolation. in light of what has been demonstrated above in this paper, one may infer that protecting the right to life and health includes sexual and reproductive health rights under the covid-19 pandemic in nigeria. these rights are perhaps the least respected rights by state actors, as have recently been demonstrated by security agents' actions in enforcing the lockdown through their extra-judicial killings of citizens in the guise of enforcing the covid19 pandemic orders. the so-called restriction orders in the guise of enforcing the lockdown have remained an impediment for the citizens to access contraceptive information and services and/or anti-retroviral drugs for persons living with hiv/aids. in such situations, it is essential to ask whether such restriction orders do not amount to derogation? the extrajudicial killings of citizens in the guise of enforcing the lockdown orders by state actors amounts to a violation of section 33(1) of the federal republic of nigeria's constitution. it stresses how one can justify killing citizens who may have flouted the lockdown order due to his search for health care facilities or palliatives. 70 see the convention on the elimination of all forms of discrimination against women (1979). 71 see the committee on economic, social, and cultural rights general comment 14, para. 34 un doc. e/c.12/2000/4 (2000). 72 section 37 of the constitution of the federal republic of nigeria (1999). 73 section 45 of the constitution of the federal republic of nigeria (1999). 46 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria based on the above, it is clear that the right to life has explicitly or implicitly been recognized, albeit in differing language, under the human rights standard ratified by nigeria. in this respect, the right to life not only protects an individual's arbitrary interference by government agents but also obliges states to take positive measures to protect from arbitrary killings, enforced disappearances, and similar violent acts committed by police or military personnel during the state of emergency. this paper maintained that states must criminalize these acts and implement appropriate measures to prevent, protect and remedy violations of the right to life. similarly, in keeping with the provisions of the constitution of the federal republic of nigeria 1999, bothering on the declaration of the state of emergency, at section 45(2) of the constitution,74 the apex law stipulates: the national assembly's act shall not be invalidated because it provides for the taking during a period of emergency of measures derogated from the provision section 33 to 35 of the constitution. it may also point out that all international and municipal human rights instruments are united in their proclamations of the right to life. however, article 3 of the declaration,75 article 6 of the covenant,76 as well as article 4 of the american convention77 respectively provides: everyone has the right to life, liberty, and security of persons,78 also, every human being has the inherent right to life. this right shall be protected by law, and no one shall be arbitrarily deprived of his life,79 and the right to life shall be protected from conception.80 on the other hand, a similar provision on the right to life was provided under the african charter on human and peoples rights,81 with an extension to articles 6(1) and (2) of the united nations convention on the 74 section 45(2) of the cfrn (1999). 75 article 3 of the universal declaration of human rights (1948). 76 article 6 of the international covenant on civil and political rights (1966). 77 article 4 of the american convention on human rights (1978). 78 article 6(1) of the iccpr (1966). 79 o. n ogbu human rights law and practice 84, 86 (cid jap press 1st ed. 1999). 80 european convention for the protection of human rights and fundamental freedoms, article 3 (1950). 81 article 4 of the african charter on human and peoples rights (1979). 47 | indonesian journal of law and society right of the child82 which expressly provide for the right to life. in light of these, the supreme court in the case of osawe v. registrar of trade union83 held that one has to bear in mind that the right guaranteed under sections 34, 35, 37, and 38 of the constitution of the federal republic of nigeria84 are “qualified rights” and not absolute rights. with regard to the above view expressed by the court, specific issues stand, to wit, infectious diseases as the ground upon which fundamental human rights can be restricted. the court also held that indicates individual acts or rights of a person or group of persons may be restricted at any time and in any place whatsoever. also, notwithstanding the comprehensive approach on the right to life and the state of legal development or public perception on the restriction of some of the fundamental rights, the constitution of the federal republic of nigeria has undergone a special process of assimilation of the law protecting public health especially to the susceptible area bothering on the spread of the coronavirus pandemic. having set this legal framework and adopting a broad interpretation, this paper submitted that the interpretative guidance under the 1999 constitution of the federal republic of nigeria was intended to provide public safety. c. right to dignity of human person according to section 34 of the constitution of the federal republic of nigeria,85 every citizen is entitled to have his dignity protected and respected by the state. however, in stressing the centrality of section 34 of the constitution of the federal republic of nigeria, in a technical sense, the purpose of this section is to ensure that no person shall be subjected to torture or to inhuman or degrading treatment, slavery, servitude or required to perform forced or compulsory labor. however, the implementation of the 82 articles 6(1) and (2) of the united convention on the right of the child (1989). 83 (1985) nwlr (pt. 4) 755. 84 sections 34, 35, 37, and 38 of the constitution of the federal republic of nigeria (1999). 85 section 34(1) of the 1999 constitution. 48 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria coronavirus (covid-19) pandemic restriction orders has left much to be desired as it relates to nigerian citizens' dignity. in maintaining public order and safety, instances abound where state actors have subjected citizens to inhuman and degrading treatment. they are either by flogging them or by making them engage in what is popularly called "frog jump" and other "forced" or "compulsory labor." there is no doubt that this approach notably aims at subjecting citizens to all manner of torture and arrest, all in the guise of implementing the present lockdown order. it is in the light of the above that the court of appeal in the case of uzoukwu v. ezeonu86 held that "torture includes mental harassment, as well as physical brutalization, while inhuman treatment characterizes any act without feeling for the suffering of the other" while degrading treatment is the element that lowers the societal status, character, value, or position of a person while it might be tempting to view the extra-judicial killings and torture of nigeria citizens by state actors in the guise of enforcing the lockdown orders as a relic of a bygone era, the court in the case of mogaji < ors v. board of customs and excise87 held that it is wrong to torture a nigerian citizen in the guise of searching. further, in respect of maintaining law and order, this apparent shift in the enforcement of executive orders is also noticeable in the case of goriet v. union of postal workers union,88 the legendary lord denning states that "be you ever so high, the law is above you." ultimately, a spectrum of attacks on citizens has led to emerging human rights challenges regarding respect to human persons' right to dignity. also, women and girls as an individual with dignity should be protected against sexual exploitation, forced prostitution, sexual abuse and coercion to engage in any unlawful activity.89 the domestication of the african charter on human and peoples right in its article 5 further boosted citizens' rights to freedom from torture and human degradation. however, the charter has been declared primus inter pares of other domestic statutes in many cases. 86 (1991) pt. 200, 6nwlr 708 at 764-778. 87 (1982) 3nclr552. 88 general recommendation no.19 para .24-violence against women (1992). 89 article 5 of the african charter on human and peoples rights (1979). 49 | indonesian journal of law and society d. the right to privacy in light of the provisions of section 37 of the constitution of the federal republic of nigeria90 citizens' right to the privacy of their homes, correspondences, telephone conversation, and telegraphic communication is guaranteed under this section. it excepts in pursuance of a court order or just cause as provided under section 45(1) of the constitution of the federal republic of nigeria. it relates to the public interest, public safety, public order, public health, state of emergency, and the protection of others' rights. the rights above to privacy and to determine the number and spacing of children cannot be derogated. however, the present restriction orders in nigeria have overtly threatened the sacrosanctity of section 37 of the constitution in the guise of searching for infected coronavirus patients who either had escaped from the isolation center or have refused to submit themselves for a test. on the other hand, the right to privacy and family as provided under the international covenant on civil and political rights91 states that: no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honor and reputation. while this provision might seem obvious, article 8 of the european charter on human rights, article 11 of the american charter on human rights, and article 16 of the convention on the rights of the child all guarantees the freedom of the child from "arbitrary or unlawful interference with his or her privacy, family, home, correspondence." however, it is essential to point out that a similar provision is contained in article 10 of the african charter on the child's rights and welfare.92 even the convention on the elimination of all forms of discrimination against women (cedaw)93 explicitly 90 section 37 of the cfrn (1999). 91 article 17 of the international convention covenant on civil and political rights (1966). 92 article 10 of the african charter on the rights and welfare of the child (1990). 93 article 16 of the convention on the elimination of all forms of discrimination against women (1979). 50 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria recognizes a woman's right to determine the number, spacing, timing of her children, and access to the contraceptive information and services necessary to exercise that right.94 it is interesting to note that the right to privacy, protected by other key international and regional treaties, protects the right of individuals and couples to make a fundamental decision about their private lives without any interference from state actors,95 and decisions about whether and when to found a family falls within the protected zone of privacy.96 as demonstrated in the previous sections, women's enjoyment of the rights above is incumbent on access to contraceptive information and services without undue interference in their ability to select a contraceptive. this view is predicated because the nigerian government's covid-19 restriction orders have affected their access to specific contraceptive methods and coercive family planning policies. also, it impairs women's ability to make informed, autonomous decisions about their personal lives and health and violates the right to privacy and to determine the number, spacing, and otherwise. drawing on the provisions of the european court of human rights, this paper argues that certain aspects of reproductive rights, such as the right to decide whether to have children and the space between them, fall within the sphere of the right to private and family life.97 the court recalls that the notion of "private life" within the meaning of article 8 of the convention is a broad concept which encompasses, inter alia, the right to personal autonomy and personal developments. e. the rights to equality and non-discrimination under section 42 of the constitution of the federal republic of nigeria,98 every citizen of nigeria of a particular community, ethnic group, place of 94 see article 16(e) of the convention on the elimination of all forms of discrimination against women (1979). 95 see cedaw committee, general recommendation 21: equality in marriage and family relations (1994). 96 ibid. 97 article 8 of the european court of human rights (1950). 98 section 42 (1)(a) of the constitution of the federal republic of nigeria (1999). 51 | indonesian journal of law and society origin, sex, religion, or political opinion shall not by reason only subjected either expressly by, or in the practical application of, any law in force in nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made the subject of discrimination. however, it is relevant to mention that this right can be derogated from where a person is suffering from infectious or contagious disease as the case may be. similarly, about section 42 of the constitution, the question that remains pertinent is whether these rights can be restricted without necessarily subjecting the citizen to inhuman and degrading treatment? the obvious answer to the poser is in the affirmative. the restriction of the rights to equality and non-discrimination is of different variants. some persons are ordinarily infected by the infectious disease (coronavirus). of course, there are equally persons who, though not infected, however, have their rights restricted or violated in the guise of 'general good'' of the public. in this sense, and for these persons, the right to equality and non-discrimination is a constitutional right that should not be violated, no matter any reason. from these different dynamics, persons who may have escaped from isolation centers and forcefully brought back by state actors to isolation centers were faced with several constitutional breaches arising from all sorts of discriminatory practices. it is in the strength of this that the court in eze v. inspector general of police & ors99 hold that "the police cannot arrest anyone for an offense not criminal in nature." the above reasoning is that this right is protected in almost every critical international and regional human rights instruments underpinning the right to access contraceptive information and services. the rights to nondiscrimination and equality prohibit discriminatory laws and policies. they require affirmative measures to combat socially and culturally ingrained discrimination to achieve substantive equality.100 this paper considers that any law or policy designed to deny women or adolescents access to 99 11 nwlr (pt.1151) 117 (2009). 100 see the convention on the elimination of all forms of discrimination against women (1979). 52 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria contraceptive methods or by requiring spousal or parental authorization for women and not for men, of course, constitutes discrimination.101 similarly, one might submit that following the prohibition of discrimination based on race, sex, language, and religion in the charter of the united nations, the adoption of the universal declaration of human rights together with the convention on the prevention and punishment of the crime of genocide102 became the next important step in the legal consolidation of the principle of equality before the law and the resultant prohibition of discrimination. further, article 1 of the universal declaration of human rights103 proclaims that "all human beings are born free and equal in dignity and rights," which according to article 2: everyone is entitled to all the rights and freedoms outlined in this declaration without distinction of any kind, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth, or another status. no distinction shall be made based on the country's political, jurisdictional, or international status or territory to which a person belongs, whether it be independent, trust, non-self-governing, or under any other limitation of sovereignty.104 also, article 7 of the universal declaration of human rights stipulates that all are equal before the law and are entitled without discrimination to equal protection of the law. all are entitled to equal protection against any discrimination in violation of this declaration.105 in this respect, article 2 of the universal declaration prohibits distinctions of any kind designed as "an amplification and clarification" of article 7 of the declaration. it could be read as meaning that no differences at all can be legally tolerated. put differently. these mandatory resolutions gave a super normative structure to the underlying rights contained in both international legislations. besides being widely held, such as the restrictive interpretation, the international 101 article 12 of the convention on the elimination of all forms of discrimination against women (1979). 102 convention on the prevention and punishment of the crime of genocide (1948). 103 article 1 of the universal declaration of the human rights (1948). 104 article 2 of the universal declaration of human rights (1984). 105 ibid, article 7. 53 | indonesian journal of law and society monitoring bodies have not to be adopted, which has led to a series of violations. various national, regional, and international legislations have confirmed the importance of equality and non-discrimination. however, article 2(2) of the international covenant on economic, social and cultural rights,106 article 2(1) of the convention of the right of the child,107 and of course, the three main regional treaties such as article 14 of the european convention on human rights,108 article 1 of the american convention on human rights,109 and article 2 of the african convention on human and peoples rights.110 in the light of the non-discrimination and equal treatment in law, the convention on the elimination of all forms of discrimination against women111 is specifically relevant for reproductive rights issues. in other words, it is essential to acknowledge that even under the covid-19 pandemic, women's right to control their fertility through invoking the prohibition against all forms of discrimination against them is an essential concept as it substantiates and specifies the notion of equality and nondiscrimination, which are considered a fundamental key that opens up women's capacity to enjoy other human rights 112 contained in other legislation. f. reproductive right protection: in search of a pathway in exploring what is meant by "reproductive rights protection" in this paper, this paper's main thrust is to provide a basis for adequate protection of women's reproductive rights, particularly in the wake of the covid-19 106 article 2(2) of the international covenant on economic, social and cultural rights (1966). 107 article 2(1) of the convention on the rights of the child (1989). 108 article 14 of the european convention on human rights (1950). 109 article 1 of the american convention on human rights (1992). 110 article 2 of the african convention on human and peoples rights (1981). 111 articles (1) and (2) of the international convention on the elimination of all forms of discrimination against women (1979). 112 c. rebecca, supra note 17. 54 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria pandemic in nigeria. it is valuable to examine the legal framework for reproductive health in nigeria. in nigeria today, the federal republic of nigeria's constitution contains provisions under sections 17(c) though not justiciable and 33 to 45 bothering promoting and protecting reproductive health and rights. while this trend is broadly real of the protection of reproductive rights under the constitution of the federal republic of nigeria, there have been other legal instruments such as the nigerian labor act113 which expressly provides for the protection of pregnant women workers as well as their right to maternity leave. also, section 58(1) of the nigerian labor act114 provides that "any breach of the provisions of the maternity leave amounts to a criminal offense." among the labor act's various provisions, it is clear that it specifically provides for the prohibition of engaging women workers on night duty and other similar activities compatible with their status. the nigerian constitution and the nigerian labor act have provided the legal frameworks adequate for guaranteeing compliance with international standards on the necessary respect for protecting reproductive health and rights in nigeria. other entities, such as the factories act, which expressly provided for workers' health, safety, and welfare, did not consider the effect of toxic substances and radioactive materials that are injurious to reproductive health. it is essential to highlight that amongst all the international and regional treaties that provided for the protection of reproductive and sexual health rights of women in nigeria, the african charter on human and peoples rights is the only one domesticated in nigeria115 and have been severally applied in nigerian courts. the operational reality today is that the african charter on human and peoples rights116 did not make express provision for the protection of the rights of women, including contraceptive rights. given the protection gap, the core concerns behind the emergence of the protocol on the rights of women in africa, otherwise known as the maputo 113 see cap. li. laws of the federation of nigeria, (2004). 114 ibid, section 58(1). 115 see cap 10 laws of the federation of nigeria (1990). 116 african charter on human and peoples rights (1979). 55 | indonesian journal of law and society protocol117 was to provide for adequate protection of women's reproductive rights expressly. despite this milestone by the maputo protocol on women's rights in africa, it is an essential tool on the regime of reproductive health rights and contraceptive rights. it must be borne in mind that this instrument has been ratified but not yet domesticated in nigeria. the nondomestication of the maputo protocol in nigeria is responsible for the nonactualization of women's reproductive rights. finally, beyond obligations applicable in all situations on state parties in the maputo protocol's domestication, reproductive issues in the african region are cultural and political issues. they have remained a significant constraint in fulfilling this obligation. it becomes an issue precisely in addressing the reproductive and contraceptive rights of women in nigeria. v. conclusion in the light of the nigerian constitution, the protocol on the rights of women in africa and other international and regional human rights instruments, the analysis shows that these legal instruments provided women's sexual and reproductive rights that address the various manifestations of violations. despite these obligations under the law, reproductive rights protection in the wake of the covid-19 pandemic regime in nigeria remains challenging. in particular, when it defines a longterm normative framework to address shortcomings inadequate protection availability. aside from situations of adequate protections, in other instances, the availability of contraception increases the level of sexual activity within society. many questions remain unanswered with the proposition that both cultural and religious issues are responsible for the inadequate protection of reproductive rights in nigeria. it must develop and strengthen domestic normative frameworks by domesticating the maputo protocol, policy, and operational practices and sharing acceptable practices to that effect. while states are under obligation to ensure a full range of contraceptive methods are available, accessible, acceptable and of good quality, to what extent has the state developed and implemented a national strategy or plan 117 adopted july 11 and entered into force november (2005). 56 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria that includes measures to ensure access to contraceptive information and services? these stand in contrast with the requirement of the nondiscrimination and equal treatment principles highlighted above. ultimately, in examining a pathway to reproductive rights protection in nigeria, existing deficiencies in legal regulations on the status of women's reproductive rights should be re-examined to respond to developments in the national, regional, and global security architecture. references a.m. starrs accelerates progress sexual and reproductive health and rights for all: report of the guttmecherlancet commission. lancet (2018). b. marge, "hiv/aids, sexual and reproductive health: intersections and implications for national programmes," health policy and planning 19, suppl. 1 (oxford university press, 2004). c. rebecca, "international protection of women's reproductive rights," new york university journal of international law and politics, vol. 24, p.645, (1991-1992). federal ministry of health, the national health policy, and strategy to achieve health for all nigerians (1988). international monetary fund report on covid-19, “the great lockdown: worst economic downturn since the great depression” 2020. j. hopkins, "loss of sense of smell as a marker of covid-19 infection". ear, nose and throat surgery body of the united kingdom 2020. accessed may 19, 2020. j. watts and n. kommenda, "coronavirus pandemic leading to the huge drop in air pollution" the guardian newspaper (london, march 23, 2020). k. anant, "role of males in reproductive and sexual health decisions" (2007) the bihar times. 57 | indonesian journal of law and society nigerian national policy on population for development, unity, progress and self-reliance 1 (1988) (national policy). o. nnamuchi, the right to health in nigeria, right to health in the middle east project, law school, university of aberdeen. o. n ogbu human rights law and practice 84, 86 (cid jap press. 1999). right to healthcare, online https://www.righttohealthcare.org/docs/ documentsc.htm> accessed august 11, 2020. r. b. siegal, sex equality arguments for reproductive rights: their critical basis and evolving constitutional expression), (2007) faculty scholarship series. paper 1137. r. clamp, "coronavirus and the black death: spread of misinformation and xenophia shows we have not learned from our past" march 5, 2020. s. jade, "why there will soon be tons of toilet papers, and what food may be scarce, according to supply chain exports." march 18, 2020. s. tavenise and r.a oppel, "spit on, yelled at, attacked: chinese americans fear for their safety" the new york times (new york, march 23, 2020). the new york times, "a list of what has been canceled because of the coronavirus" acceded may 19, 2020. t.p valavan and c.g meyer, "the covid-19 epidemic" tropical medicine and international health 25(3) (200) at 278-280. united nations population fund, sexual and reproductive health for all, (2010). united nations population fund, "male involvement in reproductive health, including family planning and sexual health technical report no. 28, (1995). united states centre for disease control and prevention, "corona virus disease 2019 (covid-19) symptoms" march 20, 2020, accessed may 19, 2020. 58 | examining the reproductive rights in the wake of covid-19 pandemic in nigeria united states centres for disease control and prevention, "interim clinical guidance for management of patients with confirmed coronavirus disease. (covid-19)" april 4, 2020, accessed may 19, 2020. united states centres for disease control and prevention, "symptoms of novel coronavirus (2019-ncov)" february 10, 2020, accessed may 10, 2020. united nations educational, scientific, cultural organization (unesco), "covid-19 educational disruption and response" march 4, 2020, accessed may 19, 2020. world health organization, "coronavirus very likely of animal origin, no sign of lab manipulation" reuters april 21, 2020, accessed may 19, 2020. world health organization, "novel corona virus – china" accessed on may 2020 world health organization, reproductive health. available at http://www.who.int/topics/reproductive_health/ accessed august 8, 2020. world health organization, "the world health organization director – general's opening remarks at the media briefing on covid-19, march 11, 2020" accessed may 19, 2020. world health organization, "covid -19 dashboard by the centre for systems science and engineering at john hopkins university", arcegis john hopkins university accessed may 19, 2020. indonesian journal of law and society (2022) 3:2 219-250 issn 2722-4074 | https://doi.org/10.19184/ijls.v3i2.33430 published by the university of jember, indonesia available online 20 march 2023 __________________________ * corresponding author’s e-mail: sholahuddin.alfath@gmail.com realizing a polite society on social media: asean and eu perspectives sholahuddin al-fatih* universitas muhammadiyah malang, indonesia abdurrahman raden aji haqqi universiti islam sultan sharif ali, brunei darussalam asrul ibrahim nur university of debrecen, hungary abstract: migration from the era of citizens to netizens is an impossible thing to avoid. during the migration, it also brings negative impact, such as hoax, hate speech, defamation and many more. this study aims to examine the relationship between the development of information technology in the digital era, especially on social media and human rights perspective in asean and eu. through normative legal research methods, this research tries to find ideal formulations and boundaries for netizens to become polite people interacting on social media. the results of this study show that the right on social media for netizens is a constitutional right that has been regulated in the 1945 constitution, eu conventions and the udhr. however, freedom of speech in social media, does not mean that there are no limits. the limitations of freedom of speech on social media are through the limitations of norms, especially norms of polite and decency whose values are universal. keywords: information technology; human rights; social media; asean; eu. copyright © 2023 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 10/08/2022 reviewed: 19/12/2022 revised: 29/01/2023 accepted: 01/02/2023 how to cite: al-fatih, sholahuddin, et al., “realizing a polite society on social media: asean and eu perspectives” (2022) 3:2 indonesian journal of law and society 219-250. doi: <https:// doi.org/10.19184/ijls.v3i2.33430>. https://doi.org/10.19184/ijls.v3i2.33430 220 | realizing a polite society on social media: asean and eu perspectives i. introduction the development of technology forces humans to adapt very quickly. the migration from the era of citizens to netizens, became inevitable. dozens of hours a day can be spent by humans in today's era to encounter technology, including information technology (especially social media and online games).1 based on a report from the social media management platform hootsuite and marketing agency we are social, in early 2021 it was stated that the number of internet users in indonesia reached 202.6 million or 73.7 percent of the total population of 274.9 million people in january 2021. of the total number, as many as 195.3 million people or 96.4 percent accessed the internet through mobile devices of the smartphone type and feature phones.2 they use a cellular connection and wifi to access the internet. the average mobile internet user in indonesia is between 16-64 years old and spends about 5 hours and 4 minutes every day accessing the internet.3 the previous studies indicate that indonesians love to access social media.4 the number reaches 170 million inhabitants. the average time spent accessing social media is 3 hours and 14 minutes every day.5 in addition to social media, indonesians also access the internet to watch television, either streaming or broadcasting for 2 hours 50 minutes. they also read the news online for 1 hour and 38 minutes and listen to the streaming service for 1 hour and 30 minutes every day.6 the series of activities of the indonesian people on the internet are also justified by data from the ministry of 1 ict institute, “orang indonesia menghabiskan waktunya untuk main internet hingga 8,5 jam sehari,” disway.id, 2022, https://pagaralampos.disway.id/read /638582/orang-indonesia-menghabiskan-waktunya-untuk-main-internet-hingga85-jam-sehari. 2 wahyunanda kusuma pertiwi, “pengguna internet indonesia tembus 200 juta, hampir semua ‘online’ dari ponsel,” kompas, 2021. 3 ibid. pertiwi. 4 zaka firma aditya and sholahuddin al-fatih, “indonesian constitutional rights: expressing and purposing opinions on the internet,” international journal of human rights 0, no. 0 (2020): 1–25, https://doi.org/10.1080/13642987.2020. 1826450. 5 op. cit pertiwi, “pengguna internet indonesia tembus 200 juta, hampir semua ‘online’ dari ponsel.” 6 ibid. pertiwi. 221 | indonesian journal of law and society communication and information of the republic of indonesia which notes that as many as 167 million or 89% of indonesians use smartphones in march 2021. several factors, according to the author, are the main reasons for the high access and needs of the indonesian people for gadgets, the development of information technology and the internet, such as: 1). the covid-19 pandemic; 2). needs; and 3). lifestyle.78 this study admits it or not, the covid-19 pandemic has further increased people's interest in accessing the internet and owning gadgets.9 schoolaged students, ranging from preschool to tertiary education, are forced to take part in online learning.10 of course, inevitably, gadgets and the internet are the main reasons for them. the covid-19 pandemic has made the need for the internet and gadgets a primary need, perhaps even defeating the need for necessities. all feature that is discovered through gadgets and internet facilities, makes the "boredom" that hits due to the covid-19 pandemic somewhat disguised. a lot of entertainment and convenience are offered through gadgets and the internet. in another hand, it also has side impact, such as the spread of hoaxes, hate speeches and another impolite activity in social media. those fact, are the gap phenomena on using social media. 7 dwi julianingsih et al., “utilization of gadget technology as a learning media,” iaic transactions on sustainable digital innovation (itsdi) 3, no. 1 (2021): 43–45, https://doi.org/10.34306/itsdi.v3i1.522. 8 ilga maria and ria novianti, “penggunaan gadget pada anak: tantangan baru orang tua milenial,” jurnal obsesi : jurnal pendidikan anak usia dini 4, no. 2 (march 2020): 1000–1010, https://doi.org/10.31004/obsesi.v4i2.490. 9 mahmoud m al-sakhnini, “the impact of covid-19 on the information technology sector in egypt and uae (challenges and opportunities),” journal of positive school psychology 6, no. 8 (2022): 7611–21, https://www.google.com/ url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahuk ewiq1fjr2cj8ahuxfrcahyxicwsqfnoecayqaq&url=https%3a%2f%2f www.journalppw.com%2findex.php%2fjpsp%2farticle%2fdownload%2f1111 0%2f7166%2f13020&usg=aovvaw0scmt_-fpraoc1d0qpimje. 10 mohamamd syahrul ra, yusuf hamdika, and sholahuddin al-fatih, “the impact of covid-19 through the lens of islamic law : an indonesian case,” lentera hukum 7, no. 3 (2020): 267–78, https://doi.org/https://doi.org/ 10.19184/ejlh.v7i3.18983. p. 272 222 | realizing a polite society on social media: asean and eu perspectives the relationship between the two is expected to make people more polite in social media. through legal research methods,11 this article is expected to contribute to the field of legal science, especially in the context of law and human rights and respond to the development of information technology and the riots of the information and electronic transaction law (hereinafter write down as iet law). some articles in iet law, such as article 27 paragraph (3), article 28, and article 45 paragraph (1) are subject of judicial review by the citizen in accordance with the article 28 e paragraph (3) uud nri 1945. the approach used in this study is a conceptual approach and is analyzed using the prefix method to find new arguments against the current factual conditions. therefore, this research and article aims to find a relationship between the development of advances in information technology and human rights under the association of south east asia nations (hereinafter write down as asean) and european union (hereinafter write down as eu) perspective. first section will discuss about social media trend: opportunities and challenges. secondly, it discusses about the issues on internet threats in asean countries. thirdly, freedom of expression rights: a comparison of eu and asean legal frameworks will be analyzed and compared. finally, in the last section the authors concluded about unlimited but limited: legal norm on freedom of expression in social media. ii. method this study conducted legal research methods12 to analyze which norm regarding freedom of expression in social media could be guaranteed and restricted. this article is expected to contribute to the field of legal science, especially in the context of the law and human rights and respond to the development of information technology and the riots of the information and electronic transaction law (from now on, write down as iet law) under the perspective of asean and eu. the approach used in this study 11 sholahuddin al-fatih and ahmad siboy, menulis artikel karya ilmiah hukum di jurnal nasional dan internasional bereputasi (malang: inteligensia media, 2021). 12 al-fatih and siboy. 223 | indonesian journal of law and society is conceptual, statute approach, and comparative approach, then it is analyzed using the prefix method to find new arguments against the current factual conditions. this research analyzes the statutes, especially udhr, the european convention on human rights, the iet law of indonesia, and uud nri 1945 of indonesia. as a comparison, some asean countries' regulations to threaten internet issues were analyzed and compared with practice in eu countries. then, in prescriptive analysis,13 it described finding new ideas about socializing on social media with polite interaction models. iii. social media trend: opportunities and challenges the world community is faced with a very rapid development of information technology, including indonesia. the 3g era, which was originally predicted to last quite a long time, it turns out that only briefly and is now starting to shift with the 5g era. versions of windows, android, mac os, linux and so on, almost every year undergo updates. however, this development, does not necessarily make the community as users, also develop and be more advanced. in fact, although the era of technology and social society has gone to the 4.0 era, many say that their society is still in the 0.4 era.14 an irony amid the rapid development of technology. this is evident, with the increasing number of misuses of information technology, both intentionally and unintentionally. cases of fraud, hacking, defamation and even murder can be done with the help of technological sophistication. socio-media played a significant role in assisting these cases. social media is an online media with users who can easily participate, share and create content, including blogs, social networks, wikis, forums, and 13 irwansyah, penelitian hukum: pilihan metode & praktik penulisan artikel, ed. ahsan yunus (yogyakarta: mirra buana media, 2020). 14 kisno, “berpikir (masih) 0.4 di era 4.0,” qureta, 2020, https://www. qureta.com/post/berpikir-masih-04-di-era-40. 224 | realizing a polite society on social media: asean and eu perspectives virtual worlds.15 blogs, social networks, and wikis (wikipedia and so forth) are the most common social media users worldwide. another opinion says that social media is online media that supports social interaction, and social media uses web-based technology that turns communication into interactive dialogue. andreas kaplan and michael haenlein define social media as "a group of internet-based applications that build on the ideological and technological foundations of web 2.0, and which enable the creation and exchange of user-generated content." social networks are sites where anyone can create personal web pages, then connect with friends to share information and communication. the largest social networks include facebook, instagram and twitter.16 nonetheless, as already mentioned in the introduction, the internet and social media also have a good impact on society. the positive impact of social media is that it makes it easier for us to interact with many people, expanding socialization, distance and time are no longer a problem, it is easier to express ourselves, the dissemination of information can take place quickly, costs less.17 furthermore, social media also has an impact, especially for child or adults in their education process. the positive impacts of social media are:18 1) facilitate learning activities because they can be used as a means for discussion with school friends about assignments (looking for information). this benefits extremely used during restriction on covid-19 pandemic, such as online platform google meets, zoom, microsoft teams, etc.;19 2) find and add friends or reunite with old 15 anang sugeng cahyono, “pengaruh media sosial terhadap perubahan sosial masyarakat di indonesia,” publiciana 9, no. 1 (2016): 140–57, https://doi.org/10.36563/publiciana.v9i1.79. 16 ibid. cahyono. 17 anang sugeng cahyono, “pengaruh media sosial terhadap perubahan sosial masyarakat di indonesia,” jurnal publiciana 9, no. 1 (2016): 140–57, http://jurnal-unita.org/index.php/publiciana/article/view/79. 18 nisa khairuni, “dampak positif dan negatif sosial media terhadap pendidikan akhlak anak (studi kasus di smp negeri 2 kelas viii banda aceh),” jurnal edukasi: jurnal bimbingan konseling 2, no. 1 (august 30, 2016): 91–106, https://doi.org/10.22373/je.v2i1.693. 19 ra, hamdika, and al-fatih, “the impact of covid-19 through the lens of islamic law : an indonesian case.” 225 | indonesian journal of law and society friends. be it friends, at school, in the play environment, or friends who meet through social networks other; and 3) eliminate student fatigue; it can be a stress remedy after a day of struggling with lessons at school. for example: commenting on other people's statuses, sometimes funny and tickling, playing games, and so forth. while the negative impact of social media is to keep people who are close and vice versa, face-to-face interactions tend to decrease, making people become addicted to the internet, causing conflicts, privacy problems, vulnerable to the bad influence of others.20 in addition to the positive impact of social media also harms the education for child or adults. the negative impacts caused by social media are:21 1) reduced study time due to too much preoccupation with using social media long time when facebooking and this will reduce the allotted study time; 2) disturbing the concentration of learning at school, when students are getting bored with the way the teacher is learning, they will access social media at will; 3) damaging student morale, because of the unstable nature of teenagers, they can access or easily view other people's pornographic images; 4) spend pocket money to access the internet and to open facebook affect the financial condition (especially if the access from the cafe) is the same as accessing facebook from mobile phones; and 5) disturbing health, too much staring at cellphone or computer screens or laptops can interfere with eye health. the existence of social media has affected social life in society. changes in social relations (social relationships) or as changes to the equilibrium of social relations and all forms of changes in social institutions in a society, which affect its social system, including values, attitudes and behavior patterns among groups in society. positive social changes such as the ease of obtaining and conveying information, obtaining social and economic benefits. meanwhile, social changes that tend to be negative such as the 20 anna yohanna, “the influence of social media on social interactions among students,” indonesian journal of social sciences 12, no. 2 (2020): 34, https://doi.org/10.20473/ijss.v12i2.22907. 21 khairuni, “dampak positif dan negatif sosial media terhadap pendidikan akhlak anak (studi kasus di smp negeri 2 kelas viii banda aceh).” 226 | realizing a polite society on social media: asean and eu perspectives emergence of social groups in the name of religion, tribes and certain patterns of behavior that sometimes deviate from existing norms.22 in february 2021, microsoft23 said that indonesia is a country with a low index of decency on social media (not to mention it as the worst) among other countries surveyed. people easily rebuke insulting others on their social media, either through posts on timelines, statuses or replying to other people's comments. the incident kept repeating itself. even though the police have launch slogan turn back hoax, war against buzzer and so on24 as if, the current development of information technology and the adverse impact of social media are two things that cannot be separated. moreover, there are also those who think that writing tweets on twitter, posting comments on facebook, uploading pictures on instagram and the like, there is part of the freedom of expression guaranteed by the constitution. thus, what they are doing on social media, ostensibly a constitutional act protected by the positive laws of the state (in indonesia it protected by the human rights norm on article 28a-j, especially in article 28e uud nri 1945 and in eu stated on european convention on human rights).25 iv. the issues on internet threats in asean member states countries in the world, including in asean, respond in various ways to the development of social media. there are those who fully support the use 22 tito siswanto, “optimalisasi sosial media sebagai media pemasaran usaha kecil menengah,” jurnal liquidity 2, no. 1 (2013): 80–86, http://www.ojs.itbad.ac.id/index.php/lq/article/view/134. 23 cnn indonesia, “survei microsoft: netizen makin tidak sopan,” cnn indonesia, 2021, https://www.cnnindonesia.com/teknologi/20210727095528185-672622/survei-microsoft-netizen-makin-tidak-sopan. 24 bambang arianto, “salah kaprah ihwal buzzer: analisis percakapan warganet di media sosial,” jurnal ilmiah ilmu pemerintahan 5, no. 1 (2020): 1–20, https://doi.org/10.14710/jiip.v5i1.7287. 25 sholahuddin al-fatih and zaka aditya, “hoax and the principle of legal certainty in indonesian legal system,” in international conference on business, law and pedagogy (sidoarjo: eai eudl, 2020), 2286165, https://doi.org/ 10.4108/eai.13-2-2019.2286165. 227 | indonesian journal of law and society of social media as a means for society to express themselves, but there are those who do the opposite. based on previously research conducted by the authors, however freedom of expression is the subject that protected by the constitutional law and some act, most countries in asean place restrictions on their community's activities on social media. table 1 below indicate, how asean countries threat on social media development in their country. no. issues in asean member states 1. brunei darussalam26 the broadcasting act requires internet service providers and internet café operators to register with the director of broadcasting. internet service providers are advised to monitor content. 2. cambodia27 1. the government cracked down heavily on independent radio in september, revoking the license of mohan for radio and its affiliates, which broadcast voice of america (voa) and radio free asia (rfa), and closing the independent radio station voice of democracy (vod). 2. authorities also forced the closure of rfa’s bureau, and a court charged two former rfa journalists with espionage in november. the journalists, who face up to 15 years in prison if convicted, remain in pretrial detention at time of writing. other radio stations broadcasting voa or rfa have come under pressure from the government and stopped broadcasting in august. almost all domestic broadcast media is now under government control. 3. indonesia28 1. on july 12, president jokowi issued a decree amending the law that regulates nongovernmental organizations, enabling the government to fast-track the banning of groups it considers “against 26 ibid. internews europe, p 55 27 ibid. human rights watch, 2018, human rights in south east asia : briefing materials for the asean-australia summit, sydney; australia, p 9-10 28 ibid. human rights watch, p 14-15 228 | realizing a polite society on social media: asean and eu perspectives pancasila or promoting communism or advocating separatism.” pancasila, or “five principles,” is indonesia’s official state philosophy. days later the government used the decree to ban hizbut uttahrir/hizbut tahrir indonesia (hti), a conservative islamist group that supports the creation of a sharia-based islamic caliphate. 2. the government issued the amendment of iet act that punished some citizen in to prison with the reason of hate speech, spreading hoax and blasphemy. 4. lao pdr 1. laos’ media is defined by a fully state-controlled press and broadcast sector, a high level of self-censorship among journalists who actively avoid covering controversial issues, and limited internet penetration-conditions that earned laos freedom house’s 2013 press status as ‘not free’.29 2. the country’s 32 television stations and 44 radio stations are government affiliated. laos’ 24 newspapers are strictly controlled by the government, leaving lao people with almost no choice of media providing independent or alternative viewpoints.30 currently, there are no media advocacies or human rights organizations in laos to advance freedom of expression issues.31 5. malaysia32 1. the communications and multimedia act (cma) has been used repeatedly to investigate and arrest those who criticize government officials on social media. section 233(1) of the cma provides criminal penalties of up to one year in prison for a communication that “is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person.” 2. on february 20, graphic artist fahmi reza was sentenced to a month in prison and a fine of rm30,000 (us$7,675) for posting an online caricature of najib wearing clown makeup. 29 freedom house, freedom of the press 2013, accessible at: http://www. freedomhouse.org/report/freedom-press/2013/laos 30 seapa, 2013. sti�ing media and civil society in laos. 31 internews europe, 2014, freedom of expression and right to information in asean countries : a regional analysis of challenges, threats and opportunities, p 41 32 ibid. human rights watch, p 20-21 229 | indonesian journal of law and society 3. in august, authorities used malaysia’s restrictive film censorship act to require the deletion of scenes from a film by a malaysian investigative journalist implicating malaysian immigration officials in the trafficking of rohingya girls. authorities also banned in its entirety kakuma can dance, a film by a swedish filmmaker about refugees and hiphop dance in kenya. both films were scheduled to be shown during the annual refugee festival in kuala lumpur. 6. myanmar33 1. over 90 cases have been filed under section 66(d) of the 2013 telecommunications act, a vaguely worded law that criminalizes broad categories of online speech, with over 20 journalists among those charged 2. in december, police detained wa lone, 31, and kyaw soe oo, 27, who were reporting for reuters on security force abuses against the rohingya. the journalists were held for nearly two weeks incommunicado. after the government approved charges against the journalists under the outdated and overly broad 1923 official secrets act, the two journalists were brought to court but were denied bail. they are currently facing charges for allegedly possessing leaked documents relating to security force operations in rakhine state. 3. khaing myo htun, an environmental rights activist, was sentenced to 18 months in prison in october for violating sections 505(b) and (c) of the penal code, which criminalizes speech that is likely to cause fear or harm and incites classes or groups to commit offenses against each other. he had been detained since july 2016 for helping prepare a statement released by the arakan liberation party, of which he was the deputy spokesperson, accusing the military of rights violations. 7. philippines34 1. in march, unidentified gunmen killed newspaper columnist joaquin briones in the masbate province town of milagros. in august, an unidentified gunman killed radio journalists rudy alicaway and leo diaz in separate incidents on the southern island of mindanao. the national union of journalists estimates that 177 filipino reporters and media workers have been killed since 1986. 33 ibid. human rights watch, p 28-30 34 ibid. human rights watch, p 37-38 230 | realizing a polite society on social media: asean and eu perspectives 2. they are so many regulations issued by duterte, president of the philippines that restricted the newspaper, radio and other media and journalist activity. 8. singapore35 the government maintains strict restrictions on the right to freedom of peaceful assembly through the public order act, which requires police permit for any “cause-related” assembly if it is held in a public place, or if members of the general public are invited. permits are routinely denied for events addressing political topics. the law was amended in 2017 to tighten the restrictions, and now provides the police commissioner with specific authorization to reject any permit application for an assembly or procession "directed towards a political end" if any foreigner is involved. 9. thailand36 1. media outlets that refused to fully comply, including voice tv, spring news radio, peace tv, and tv24, were temporarily forced off the air in march, april, august, and november 2017 respectively. these stations were later allowed to resume broadcasting when they agreed to practice self-censorship, either by excluding outspoken commentators or avoiding political issues altogether. 2. the junta continued to use sedition (article 116 of the criminal code) and the computer related crime act (cca) to criminalize criticism and peaceful opposition to military rule. since the 2014 coup, at least 66 people have been charged with sedition. in august, authorities charged veteran journalist pravit rojanaphruk and two prominent politicians pichai naripthaphan and watana muangsook—with sedition and violating the cca for their facebook commentaries about thailand’s political and economic problems. 3. thailand’s revised cca, which became effective in may 2017, provides the government with broad powers to restrict free speech and enforce censorship. the law uses vague and overbroad grounds for the government to prosecute any information online that it 35 ibid. human rights watch, p 42-43 36 ibid. human rights watch, p 46-48 231 | indonesian journal of law and society deems to be “false” or “distorted,” including allegations against government officials regarding human rights abuses. even internet content that is not found to be illegal under the act can be banned if a government computer data screening committee finds the information is “against public order” or violates the “good morals of the people.” 4. since the coup, authorities have arrested at least 105 people on lese majeste charges, mostly for posting or sharing critical commentary online. some have been convicted and sentenced to decades of imprisonment, including a man sent to prison in june for 35 years (a 50 percent reduction of the original sentence because he confessed to the alleged crime) based on 10 critical facebook posts. 10. vietnam37 1. during 2017, authorities arrested at least 40 rights bloggers and activists, including former political prisoners nguyen bac truyen, truong minh duc, nguyen van tuc, nguyen trung ton, and pham van troi, for exercising their civil and political rights in a way that the government views as threatening national security. at least 24 people were put on trial, convicted, and sentenced to between 3 and 14 years in prison. 2. in june, a court in khanh hoa sentenced prominent blogger nguyen ngoc nhu quynh (also known as mother mushroom) to 10 years in prison for critical online posts and documents she published on the internet collected from public sources, including state-sanctioned media. in july, a court in ha nam province sentenced prominent activist tran thi nga to nine years in prison for her internet posts. table 1. asean countries response on social media cases38 from the table above, this article indicate that asean countries choose a strict way to prevent the civil expression on their social media. some of punishment (including fine and jail), were given to someone who express their opinion on social media, which has different matters with the 37 ibid. human rights watch, p 54-55 38 sholahuddin al-fatih et al., “asean civil society in the digital era; are we moving backwards?” 317, no. iconprocs (2019): 266–69, https://doi.org/ 10.2991/iconprocs-19.2019.55. 232 | realizing a polite society on social media: asean and eu perspectives government. asean countries have various instruments to limit the freedom of expression of their citizens on social media. for example, indonesia with iet law, malaysia with the communications and multimedia act, myanmar with telecommunications act, singapore with public order act, thailand with computer related crime act and brunei darussalam with broadcasting act. all these regulations have in common to limit activities, especially aspects of freedom of expression for their citizens. the forms of media that were also banned varied, ranging from social media, tv, and radio to magazines and newspapers. v. freedom of expression rights: a comparison of eu and asean legal frameworks protection of the right to freedom of expression is not only provided by the united nations (hereinafter write down as un) and national states. regionally based organizations such as the council of europe, the european union (eu) and the association of southeast asian nations (asean) also provide such protection through legal instruments agreed upon by member states. each regional organization has different mechanisms for recognizing and protecting human rights. the level of integration within the organization dramatically influences the recognition and protection of human rights, especially the right to freedom of expression. in this perspective, the european regional region is at the forefront of providing recognition and protection.39 the existence of legal recognition and protection of human rights by regional organizations is a consequence of the emergence of regional citizenship. the presence of regional citizenship is a gradual evolutionary process and is an essential part of the process of regional integration. 40 the eu adopts the most powerful and rigid concept of regional citizenship, 39 amalie ravn weinrich, "varieties of citizenship in regional organisations: a cross-regional comparison of rights, access, and belonging" (2021) 24:4 int area stud rev 255–273 at 256. 40 jo shaw, "the interpretation of european union citizenship" (1998) 61:3 mod law rev 293–317 at 294. 233 | indonesian journal of law and society while asean regulates it otherwise. 41 nonetheless, the forms and powers of recognition and protection provided by the legal framework of regional organizations do not make the existence of the right to freedom of expression disappear. the growing digital world and social media have made protecting the right to freedom of expression relevant again for regional organizations. the council of europe will be the subject of the first discussion on regional organizations’ recognition and protection of human rights. the organization, founded in 1950, plays an essential role in recognizing and protecting human rights in the european region through the european convention on human rights. it took quite a long time for european countries to identify the right to freedom of expression. the dictatorial rule that colored the course of the history of european countries became an obstacle to the recognition and protection of this right.42 therefore, adopting the european convention of human rights is a massive leap in recognizing the right to freedom of expression. this convention recognizes freedom of expression as a human right that must be protected.43 in principle, all member states of the council of europe must defend the exercise of the right to freedom of expression. nonetheless, this right is not entirely absolute but can also be subject to restrictions exercised by the state on the grounds of national interest.44 in addition to recognizing and guaranteeing the right to freedom of expression, the council of europe also provides judicial mechanisms for citizens who feel their rights are being harmed through the european court of human rights.45 the legal design of recognition and protection of the right to freedom of expression adopted by the council of europe can generally provide equal 41 weinrich, supra note 1 at 258. 42 roger kiska, "hate speech: a comparison between the european court of human rights and the united states supreme court jurisprudence" (2012) 25:48420 regent univ law rev 107–151 at 107. 43 art. 10 para 1 council of europe, “european convention on human rights” (1950), https://doi.org/10.1017/s0008197300013908. 44 art. 10 para 2 council of europe. 45 oreste pollicino & marco bassini, "free speech, defamation and the limits to freedom of expression in the eu: a comparative analysis" (2014) res handb eu internet law 508–542 at 513. 234 | realizing a polite society on social media: asean and eu perspectives space for citizens and their countries. the existence of the european court of human rights also provides a precise mechanism for justice seekers. nonetheless, the design presents a complexity of relationships between all elements involved in the recognition and protection of the right to freedom of expression.46 such complexity, on the one hand, is because, in substance, the right to freedom of expression is recognized and protected, but the state also has the right to restrict the exercise of that right. on the other hand, the european court of human rights is obliged to render a fair judgment to protect the exercise of that right. conditions become more complex because the european court of human rights ruling does not apply directly but must go through the supervision of other institutions.47 another legal instrument on human rights in europe is the charter of fundamental rights of the european union, which came into force in 2009 at the same time as the lisbon treaty came into force. this document became an essential part of the history of the recognition and protection of human rights in eu member states. the existence of the right to freedom of expression in eu member states is a logical consequence of the recognition of eu citizenship in the treaty functioning of the eu. the 48 concept of freedom of expression adopted by the charter of fundamental rights of the european union is quite different from its predecessor, the european convention on human rights. the difference is the absence of a provision stating that the state can restrict the exercise of such rights. the charter of fundamental rights of the european union even expressly states that public authorities cannot intervene in the right to freedom of expression. 49 the study argues that there has been a shift in democratic values in europe over more than five 46 jean-francois flauss, "the european court of human rights and freedom of expression" (2009) 84:809 indiana law j at 809–810. 47 art. 46 european convention on human rights, supra note 5. 48 art. 20 european union, “consolidated version of the treaty on the functioning of the european union,” the treaty on the functioning of the european union § (1957). 49 art. 11 european union, “the charter of fundamental rights of the european union” (2000), https://doi.org/10.1515/9783110971965.518. 235 | indonesian journal of law and society decades since the adoption of the european convention on human rights in 1950. in addition, the free movement of people and goods also triggered the adoption of a more liberal form of protection for the right to freedom of expression. the internal eu free market, characterized by the existence of a free movement of people and goods, correlates with more unrestrained freedom of expression. this condition is expected to cause broad public participation in the internal market.50 thus eu citizens can express ideas and ideas freely without being haunted by the fear of state intervention. the rapid pace of the digital world is also a catalyst so that freedom of expression, especially on social media, is not limited by political interests. violations of the right to freedom of expression amid rapid technological development occur in at least three forms. the first is the violation of ownership due to using new technologies. the next is the rights conflict due to the use of new technologies and the emergence of new problems related to the human rights of using new technologies.51 under the internal conditions of the free market in the eu, the interaction of the right to freedom of expression is very likely to be subject to violations or conflicts. therefore, removing restrictions on these rights is the most appropriate way to minimize friction. there is a clear boundary in the right to freedom of expression, namely, the violation of the rights of others. especially true after the adoption of the general data protection regulation (gdpr) by the eu in 2016. the gdpr is a legal instrument that provides solid legal protection for the security of eu personal data.52 therefore, this legal instrument can be a firm boundary line to the right to freedom of expression in the eu region. violations of protecting personal data are possible, especially with the rapid flow of information technology. evolutive, the eu region's right to 50 deirde golash, ed., freedom of expression in a diverse world (springer, n.d.), 5. 51 bart custers, "new digital rights: imagining additional fundamental rights for the digital era" (2022) 44 comput law secur rev 105636, online: <https://doi.org/10.1016/j.clsr.2021.105636>. 52 saru arifin, "the independenceof thedata protection authority in electronic commerce in the eu:relevances to indonesian dpa legislation?" (2021) essays fac law univ pecs yearb 2019-2020. 236 | realizing a polite society on social media: asean and eu perspectives freedom of expression will meet its limits by providing personal data protection. this means that freedom of expression guaranteed by the charter of fundamental rights of the european union should not interfere with protecting personal data. in addition to protecting personal data, the right to freedom of expression is also restricted from carrying out hate speech and defamation.53 the same is true in cyberspace, especially social media. the existence of social media that penetrates national borders with an abundance of information from various unverified sources is a challenge to implementing the right to freedom of expression. this challenge has developed into a loophole for possible violations of the right to freedom of expression on social media without adequate legal protection.54 the european region, with all the legal infrastructure regulating human rights, is still experiencing challenges in implementing the right to freedom of expression amid the rapid pace of information technology and social media. then what about the southeast asia region with asean as its regional organization. before discussing further, the development of human rights, especially the right to freedom of expression, it is necessary to know the legal framework that applies in asean as a regional organization with its perspective in creating its legal ecosystem. on the one hand, asean's legal design is problematic because it does not specify legal instruments and their binding force (although, both indonesia and malaysia have pdpa, in asean level they don't have. it is different with eu policies, that amended by eu members). 55 on the other hand, the form of informality in asean legal design encourages accountability 53 kiska, supra note 4. 54 rikke frank jørgensen & lumi zuleta, "private governance of freedom of expression on social media platforms eu content regulation through the lens of human rights standards" (2020) 41:1 nord rev 51–67 at 63. 55 kevin y l tan, "asean law: content, applicability, and challenges" in diane a desierto & david cohen, eds, asean law reg integr gov rule law southeast asia's single mark (new york: routledge, 2021) 39; nattapat limsiritong, "the problems of law interpretation under asean instruments and asean legal instruments" (2016) 5:2 mfu connex 136–155. 237 | indonesian journal of law and society and mutual trust among member states. 56 the asean charter adopted in 2008 also affirms that the decision-making principle is based on consultation and consensus. 57 therefore, in many aspects, asean member states agree on a substance in the form of an instrument that is not binding but has legal relevance. in 2012 the leaders of asean member states adopted the asean declaration of human rights, which also marked the institutionalization of human rights issues in the region. 58 this document represents a significant leap towards recognizing and protecting human rights at the southeast asian regional level.59 freedom of expression is contained in the asean declaration of human rights, which includes civil and political rights. there are differences in the formulation of these rights, which differ from the european convention on human rights and the charter of fundamental rights of the european union. the asean declaration of human rights more clearly limits the form of expression orally, in writing, and in other media.60 if interpreted broadly, social media is one of the platforms to channel the right to freedom of expression. this difference is very reasonable, considering that the values contained in the eu and asean are different. although it needs to be recognized as a global human rights promoter, it has influence to support asean in promoting human rights in the region. 61 in addition to differences, there are also similarities between the asean declaration of 56 winfried huck, "informal international law-making in the asean: consensus, informality and accountability" (2020) 80 zaörv 101–138, online: <http://www.zaoerv.de> at 115. 57 art. 20 asean, “the asean charter” (2008), https://doi.org/10.1142/9789813221147_0005. 58 yuyun wahyuningrum, "a decade of institutionalizing human rights in asean: progress and challenges" (2021) 20:2 j hum rights 158–175, online: <https://doi.org/10.1080/14754835.2021.1875811>. 59 mathew davies, "an agreement to disagree: the asean human rights declaration and the absence of regional identity in southeast asia" (2014) 33:3 j curr southeast asian aff 107–129 at 124. 60 asean secretariat, “asean human rights declaration and phnom penh statement on the adoption of the asean human rights declaration,” 2013. 61 laura allison-reumann, "asean and human rights: challenges to the eu's diffusion of human rights norms" (2017) 15:1 asia eur j 39–54 at 51. 238 | realizing a polite society on social media: asean and eu perspectives human rights and the charter of fundamental rights of the european union. the equation is the absence of a form of restriction by the state. by understanding at the difference in the timing of the adoption of the two documents, asean should have a more progressive human rights declaration document than the eu. comparing europe and southeast asia's human rights legal framework to some would seem unworthy. however, this comparison will get its relevance during the rapid development of information technology, especially social media. the relevance is that the right to freedom of expression is challenged by the invasion of information whose validity has not been verified. in addition, it needs to be recognized that european values are different from asian values. however, in social media, it seems that the values embraced by society interact and influence each other. meanwhile, the legal infrastructure to guarantee the exercise of the right to freedom of expression available is quite different. the council of europe and the eu have judicial mechanisms for the public to seek justice if violating the right to freedom of expression. unfortunately, the asean public does not yet have the exact mechanism as in the european region. in addition, asean legal instruments that are only declarations also do not provide guarantees for implementing human rights because they are not legally binding. vi. unlimited but limited: legal norm on freedom of expression in social media one of the freedoms inherent in every individual is the freedom of expression and opinion. the course of democracy in a country is marked by the respect, protection, and fulfillment of human rights, which are the government's obligation and responsibility. in addition, of course, the role and participation of the community are also needed. freedom of expression and opinion depends on the policies set by the competent government, especially on the issue of giving freedom to individuals to express themselves, and the state guarantees freedom of expression without 239 | indonesian journal of law and society intervention.62 toby mendel explained that there are several reasons for freedom of expression to be important:63 first, because this is the foundation of democracy; second, freedom of expression plays a role in eradicating corruption; third, freedom of expression promotes accountability; and the last, freedom of expression in society is believed to be the best way to find the truth. although freedom of expression is an essential point in a democratic country, it does not mean that freedom is without limits. various regulations, both in national and international contexts, guarantee the fulfillment of freedom of expression and limit specific scopes and clauses. in fact, this research examine and look at the existing positive legal norms, both in the udhr, iccpr, the 1945 nri constitution, the human rights law and even the iet law, freedom of expression is guaranteed if it does not conflict with the norms prevailing in society. the universal declaration of human rights (udhr, also known internationally as the udhr or universal declaration of human rights) stipulates that this freedom of expression does not mean absolute freedom of freedom.64 therefore, freedom of expression also has its limits. article 19 of the universal declaration of human rights states: (1) everyone has an obligation to a community in which only the free and full development of his personality is possible. (2) in the exercise of his rights and freedoms, every person is subject to the limitations prescribed by law solely for the purpose of guaranteeing recognition and respect for the rights and freedoms of others and to meet the requirements of just morality. public order, and welfare in a democratic society.65 62 kristian megahputra warong, caecilia j j waha, and cornelius tangkere, “kajian hukum hak asasi manusia terhadap kebebasan berpendapat oleh organisasi kemasyarakatan di media sosial,” lex administratum 8, no. 5 (november 14, 2020): 44, https://ejournal.unsrat.ac.id/v3/index.php/administratum/article/view/31266. 63 ibid. megahputra warong, waha, and tangkere. 64 iswandi syahputra, “demokrasi virtual dan perang siber di media sosial: perspektif netizen indonesia,” jurnal aspikom 3, no. 3 (2017): 457, https://doi.org/10.24329/aspikom.v3i3.141. 65 pbb, “deklarasi universal hak-hak asasi manusia,” 1948. 240 | realizing a polite society on social media: asean and eu perspectives meanwhile, article 20 of the iccpr (international covenant on civil and political rights)66 limitedly mentions two categories in which freedom of expression can be limited, namely: (1) any propaganda for war; (2) any act that encourages hatred because of nationality, race, or religionthat incites discrimination, hostility, or violence. this restriction is essential to ward off any form of expression (written, video or audio images) y angcalling for or spreading war.67 the same provision is also justified in limiting the space for freedom of expression. there are differences in interpretation in the iccpr on how to limit or reduce the right to expression and opinion in the context of hate speech.68 in addition to the udhr and iccpr, there are also normative rules that are the result of discussions by international human rights experts that regulate restrictions on freedom of expression as outlined in the johannesburg principles on national security, freedom of expression and access to information (johannesburg principles). the johannesburg principle states that no one can be subject to restrictions, deductions, and sanctions, nor should he be harmed by his opinion or belief. freedom of expression or new opinions may be restricted, or punishable if they threaten national security, and only if the state can demonstrate that the expression of such opinions/expressions is intended to motivate imminent violence. or if it can motivate the occurrence of violence or if there is a direct and close relationship between the expression of opinions, and the possibility of violence occurring.69 in the context of the indonesian legal state, the norms prevailing in our society include 4 types, namely: legal norms, religious norms, norms of 66 aditya and al-fatih, “indonesian constitutional rights: expressing and purposing opinions on the internet.” 67 kikue hamayotsu, “the limits of civil society in democratic indonesia: media freedom and religious intolerance,” journal of contemporary asia 43, no. 4 (2013): 658–77, https://doi.org/10.1080/00472336.2013.780471. 68 the conversation, “uu ite dan merosotnya kebebasan berekspresi individu di indonesia,” 2019, https://theconversation.com/uu-ite-dan-merosotnyakebebasan-berekspresi-individu-di-indonesia-126043. 69 aditya and al-fatih, “indonesian constitutional rights: expressing and purposing opinions on the internet.” 241 | indonesian journal of law and society polite and norms of decency.70 restrictions on freedom apply when freedom of expression on social media stimulates acts of violence that are harmful to the soul. the indonesian constitution also provides for restrictions, as stated in article 28j of the 1945 constitution. other provisions regarding restrictions are also regulated in the provisions of article 70 of law number 39 of 1999 concerning human rights, which reads: "... in carrying out their rights and obligations, everyone shall be subject to the restrictions provided for by law with the view of guaranteeing recognition and respect for the rights and freedoms of others and meeting just demands in accordance with considerations of morality, security and public order in a democratic society... ". meanwhile, article 73 states: "... the rights and freedoms provided for in this act can only be limited by and under the ordinance, solely to guarantee the recognition and respect for the human rights and fundamental freedoms of others, morals, public order and the interests of the nation ... ".7172 restrictions on freedom of expression on social media are also contained in law no. 10 of 2008 concerning public information disclosure, especially regarding the existence of excluded information. 73 there are two important things regarding the limitation of information in this law. first, the law limits the types of public information that can be accessed. second, the law uses the basis of "propriety and public interest" as the basic reason for the limitation of rights.74 so, whether spreading hoaxes, harassing others, insulting, defaming others and so on, can be justified by these norms. the answer is and certainly not. 70 aditya and al-fatih. 71 cahyono, “pengaruh media sosial terhadap perubahan sosial masyarakat di indonesia.” 72 aditya and al-fatih, “indonesian constitutional rights: expressing and purposing opinions on the internet.” 73 nunuk febriananingsih, “keterbukaan informasi publik dalam pemerintahan terbuka menuju tata pemerintahan yang baik,” jurnal rechts vinding: media pembinaan hukum nasional 1, no. 1 (2012): 135–56, https://doi.org/10.33331/rechtsvinding.v1i1.110. 74 aditya and al-fatih, “indonesian constitutional rights: expressing and purposing opinions on the internet.” 242 | realizing a polite society on social media: asean and eu perspectives thus, it is true that freedom of expression on social media is a constitutional right that has been regulated and protected in the main legal norms, such as: 1). the 1945 nri constitution; and 2). general declaration of human rights. that said, that doesn't mean free speech on social media is allowed to be free indefinitely. the boundaries that should be used as a reference are moral limits, regarding the value of right or wrong. the control exercised is returned to the conscience of each individual. thus, freedom of expression on social media can be realized responsibly.75 apart from through internal and individual control, several strategic steps can be taken by the government and related stakeholders to be able to realize a polite society on social media. first, restrictions on gadget ownership by age group. whether realize it or not, the ownership of gadgets has triggered many adverse impacts on society. the increasing crime rate is triggered by easy access to spectacles that do not provide guidance. the spectacle can be very easily accessed through a gadget connected to the internet, either through personal data or wifi. thus, the regulation of gadget ownership based on age groups, needs to be regulated more firmly and specifically. second, restrictions on the use of social media accounts. the government is trying to include a minimum age limit of 17 years for users of social media accounts in the personal data protection act. the idea refers to the regulations provided for in the general data protection regulation (gdpr) or the personal data protection act in the european union. the gdpr sets a 16-year age limit for children to be able to consent, and be legally recognized, to enter the digital world. under that age, under gdpr, there must be consent from parents. explicitly, indonesian legal norms also regulate the competence of children based on that age group. however, it does not specifically contain provisions containing prohibitions and conditions for the use of social media based on age groups. the policyseems complicated, but by involving 75 munir fuady, teori-teori besar dalam hukum: grand theory, 3rd editio (jakarta: kencana prenada media group, 2014), https://books.google.co.id/books?hl=id&lr=&id=nrjadwaaqbaj&oi=fnd& pg=pr5&dq=paradigma+moral+dan+hukum+alam&ots=ay_mipykyc&sig=a l_fqhbmwfhz6q-dw6virpjzd5i&redir_esc=y#v=onepage&q&f=false. 243 | indonesian journal of law and society the active role of parents and good preventive education, it is not impossible that the policy will be successfully implemented in the future. third, blocking of social media accounts charged with sara (suku (ethnic group), agama (religion), ras (nations), and antar golongan (between groups). whether realize it or not, the politeness of the indonesian people on social media is also influenced by the available content. unfortunately, it is very difficult to track and report one by one those content providers. so, the government in this case may be cyber police, needs to open a call center or helpdesk aimed at receiving complaints from the public who report suspected misuse of social media. content providers that contain sara, including those that display pornography and pornography, can be actively reported by the public for cyber police action. fourth, positive content campaign. if negative content has been reported and blocked, then the virtual universe needs to be filled with good content, educational content, constructive content. therefore, it is necessary to carry out a campaign, and it is necessary to cooperate with relevant stakeholders. the government needs to participate hand in hand to provide positive content and support several content providers that have the potential to produce good image and information for the public, such as the good news from indonesia (gnfi) account, warung sains dan teknologi (warstek) and so on. educational content on social media is a booster for the creation of a polite social media ecosystem. this is a common task, not just one ministry or institution, but requires the role of the private sector and society in general. through this series of efforts, people are expected to be able to remain active in social media, realizing that social media is a basic right, but still polite and not exposed to negative viruses and the adverse effects of social media itself. 244 | realizing a polite society on social media: asean and eu perspectives vii. conclusion there is a relationship between technological sophistication and human rights, namely in the context of guaranteeing the fulfillment of the right to free opinion and expression on social media. however, based on existing legal norms, such as in the udhr, iccpr, johannesburg principles, eu convention on human rights, the 1945 nri constitution, the human rights law, the iet law and the kip law, freedom of opinion and expression on social media is not an absolutely free right, but can be limited. based on these restrictions, to be able to realize a polite society on social media (both in asean and eu perspective), several strategic steps are needed from the government and related stakeholders, such as: 1). restrictions on gadget ownership based on age groups; 2). restrictions on the use of social media accounts; 3). blocking of social media accounts charged with sara, pornography and pornography; 4). positive content campaign. moreover, the boundaries that should be used as a reference are moral limits, regarding the value of right or wrong. the control exercised is returned to the conscience of each individual. thus, freedom of expression on social media can be realized responsibly. references aditya, zaka firma, and sholahuddin al-fatih. “indonesian constitutional rights: expressing and purposing opinions on the internet.” international journal of human rights 0, no. 0 (2020): 1–25. https://doi.org/10.1080/13642987.2020.1826450. al-fatih, sholahuddin, and zaka aditya. “hoax and the principle of legal certainty in indonesian legal system.” in international conference on business, law and pedagogy, 2286165. sidoarjo: eai eudl, 2020. https://doi.org/10.4108/eai.13-2-2019.2286165. al-fatih, sholahuddin, zaka aditya, haris haris, and wahyudi kurniawan. “asean civil society in the digital era; are we moving backwards?” 317, no. iconprocs (2019): 266–69. https://doi.org/10.2991/iconprocs-19.2019.55. 245 | indonesian journal of law and society al-fatih, sholahuddin, and ahmad siboy. menulis artikel karya ilmiah hukum di jurnal nasional dan internasional bereputasi. malang: inteligensia media, 2021. al-sakhnini, mahmoud m. “the impact of covid-19 on the information technology sector in egypt and uae (challenges and opportunities).” journal of positive school psychology 6, no. 8 (2022): 7611–21. https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd =&cad=rja&uact=8&ved=2ahukewiq1fjr2cj8ahuxfrcahyxicws qfnoecayqaq&url=https%3a%2f%2fwww.journalppw.com%2f index.php%2fjpsp%2farticle%2fdownload%2f11110%2f7166%2f13 020&usg=aovvaw0scmt_-fpraoc1d0qpimje. allison-reumann, laura. “asean and human rights: challenges to the eu’s diffusion of human rights norms.” asia europe journal 15, no. 1 (2017): 39–54. https://doi.org/10.1007/s10308-016-0461-2. arianto, bambang. “salah kaprah ihwal buzzer: analisis percakapan warganet di media sosial.” jurnal ilmiah ilmu pemerintahan 5, no. 1 (2020): 1–20. https://doi.org/10.14710/jiip.v5i1.7287. arifin, saru. “the independenceof thedata protection authority in electronic commerce in the eu:relevances to indonesian dpa legislation?” essays of faculty of law university of pecs yearbook of 2019-2020, 2021. asean. the asean charter (2008). https://doi.org/10.1142/9789813221147_0005. asean secretariat. “asean human rights declaration and phnom penh statement on the adoption of the asean human rights declaration,” 2013. cahyono, anang sugeng. “pengaruh media sosial terhadap perubahan sosial masyarakat di indonesia.” publiciana 9, no. 1 (2016): 140–57. https://doi.org/10.36563/publiciana.v9i1.79. ———. “pengaruh media sosial terhadap perubahan sosial masyarakat 246 | realizing a polite society on social media: asean and eu perspectives di indonesia.” jurnal publiciana 9, no. 1 (2016): 140–57. http://jurnalunita.org/index.php/publiciana/article/view/79. cnn indonesia. “survei microsoft: netizen makin tidak sopan.” cnn indonesia, 2021. https://www.cnnindonesia.com/teknologi/20210727095528-185672622/survei-microsoft-netizen-makin-tidak-sopan. conversation, the. “uu ite dan merosotnya kebebasan berekspresi individu di indonesia,” 2019. https://theconversation.com/uu-itedan-merosotnya-kebebasan-berekspresi-individu-di-indonesia126043. council of europe. european convention on human rights (1950). https://doi.org/10.1017/s0008197300013908. custers, bart. “new digital rights: imagining additional fundamental rights for the digital era.” computer law and security review 44 (2022): 105636. https://doi.org/10.1016/j.clsr.2021.105636. davies, mathew. “an agreement to disagree: the asean human rights declaration and the absence of regional identity in southeast asia.” journal of current southeast asian affairs 33, no. 3 (2014): 107– 29. https://doi.org/10.1177/186810341403300305. european union. consolidated version of the treaty on the functioning of the european union, the treaty on the functioning of the european union § (1957). ———. the charter of fundamental rights of the european union (2000). https://doi.org/10.1515/9783110971965.518. febriananingsih, nunuk. “keterbukaan informasi publik dalam pemerintahan terbuka menuju tata pemerintahan yang baik.” jurnal rechts vinding: media pembinaan hukum nasional 1, no. 1 (2012): 135–56. https://doi.org/10.33331/rechtsvinding.v1i1.110. flauss, jean-francois. “the european court of human rights and freedom of expression.” indiana law journal 84, no. 809 (2009). https://doi.org/10.1163/9789004349155_006. 247 | indonesian journal of law and society fuady, munir. teori-teori besar dalam hukum: grand theory. 3rd editio. jakarta: kencana prenada media group, 2014. https://books.google.co.id/books?hl=id&lr=&id=nrjadwaaqbaj&o i=fnd&pg=pr5&dq=paradigma+moral+dan+hukum+alam&ots=ay_m ipykyc&sig=al_fqhbmwfhz6qdw6virpjzd5i&redir_esc=y#v=onepage&q&f=false. golash, deirde, ed. freedom of expression in a diverse world. springer, n.d. hamayotsu, kikue. “the limits of civil society in democratic indonesia: media freedom and religious intolerance.” journal of contemporary asia 43, no. 4 (2013): 658–77. https://doi.org/10.1080/00472336.2013.780471. huck, winfried. “informal international law-making in the asean: consensus, informality and accountability.” zaörv 80 (2020): 101– 38. institute, ict. “orang indonesia menghabiskan waktunya untuk main internet hingga 8,5 jam sehari.” disway.id, 2022. https://pagaralampos.disway.id/read/638582/orang-indonesiamenghabiskan-waktunya-untuk-main-internet-hingga-85-jam-sehari. irwansyah. penelitian hukum: pilihan metode & praktik penulisan artikel. edited by ahsan yunus. yogyakarta: mirra buana media, 2020. jørgensen, rikke frank, and lumi zuleta. “private governance of freedom of expression on social media platforms eu content regulation through the lens of human rights standards.” nordicom review 41, no. 1 (2020): 51–67. https://doi.org/10.2478/nor-20200003. julianingsih, dwi, anggy prawiyogi, elen dolan, and desy apriani. “utilization of gadget technology as a learning media.” iaic transactions on sustainable digital innovation (itsdi) 3, no. 1 (2021): 43–45. https://doi.org/10.34306/itsdi.v3i1.522. khairuni, nisa. “dampak positif dan negatif sosial media terhadap pendidikan akhlak anak (studi kasus di smp negeri 2 kelas viii banda aceh).” jurnal 248 | realizing a polite society on social media: asean and eu perspectives edukasi: jurnal bimbingan konseling 2, no. 1 (august 30, 2016): 91– 106. https://doi.org/10.22373/je.v2i1.693. kiska, roger. “hate speech: a comparison between the european court of human rights and the united states supreme court jurisprudence.” regent university law review 25, no. 48420 (2012): 107–51. kisno. “berpikir (masih) 0.4 di era 4.0.” qureta, 2020. https://www.qureta.com/post/berpikir-masih-04-di-era-40. limsiritong, nattapat. “the problems of law interpretation under asean instruments and asean legal instruments.” mfu connexion 5, no. 2 (2016): 136–55. maria, ilga, and ria novianti. “penggunaan gadget pada anak: tantangan baru orang tua milenial.” jurnal obsesi : jurnal pendidikan anak usia dini 4, no. 2 (march 2020): 1000–1010. https://doi.org/10.31004/obsesi.v4i2.490. megahputra warong, kristian, caecilia j j waha, and cornelius tangkere. “kajian hukum hak asasi manusia terhadap kebebasan berpendapat oleh organisasi kemasyarakatan di media sosial.” lex administratum 8, no. 5 (november 14, 2020): 44. https://ejournal.unsrat.ac.id/v3/index.php/administratum/article/view/ 31266. pbb. “deklarasi universal hak-hak asasi manusia,” 1948. pertiwi, wahyunanda kusuma. “pengguna internet indonesia tembus 200 juta, hampir semua ‘online’ dari ponsel.” kompas, 2021. pollicino, oreste, and marco bassini. “free speech, defamation and the limits to freedom of expression in the eu: a comparative analysis.” research handbook on eu internet law, 2014, 508–42. https://doi.org/10.4337/9781782544173.00032. ra, mohamamd syahrul, yusuf hamdika, and sholahuddin al-fatih. “the impact of covid-19 through the lens of islamic law : an indonesian case.” lentera hukum 7, no. 3 (2020): 267–78. 249 | indonesian journal of law and society https://doi.org/https://doi.org/10.19184/ejlh.v7i3.18983. shaw, jo. “the interpretation of european union citizenship.” the modern law review 61, no. 3 (1998): 293–317. https://doi.org/10.1111/1468-2230.00145. siswanto, tito. “optimalisasi sosial media sebagai media pemasaran usaha kecil menengah.” jurnal liquidity 2, no. 1 (2013): 80–86. http://www.ojs.itb-ad.ac.id/index.php/lq/article/view/134. syahputra, iswandi. “demokrasi virtual dan perang siber di media sosial: perspektif netizen indonesia.” jurnal aspikom 3, no. 3 (2017): 457. https://doi.org/10.24329/aspikom.v3i3.141. tan, kevin y. l. “asean law: content, applicability, and challenges.” in asean law and regional integration: governance and the rule of law in southeast asia’s single market, edited by diane a desierto and david cohen, 39–56. new york: routledge, 2021. wahyuningrum, yuyun. “a decade of institutionalizing human rights in asean: progress and challenges.” journal of human rights 20, no. 2 (2021): 158–75. https://doi.org/10.1080/14754835.2021.1875811. weinrich, amalie ravn. “varieties of citizenship in regional organisations: a cross-regional comparison of rights, access, and belonging.” international area studies review 24, no. 4 (2021): 255– 73. https://doi.org/10.1177/22338659211025890. yohanna, anna. “the influence of social media on social interactions among students.” indonesian journal of social sciences 12, no. 2 (2020): 34. https://doi.org/10.20473/ijss.v12i2.22907. 250 | realizing a polite society on social media: asean and eu perspectives microsoft word 26660-ed.doc indonesian journal of law and society (2021) 2:2 165-196 issn 2722-4074 | https://doi.org/10.19184/ijls.v2i2.26660 published by the university of jember, indonesia available online 30 september 2021 _____________________________ * corresponding authors’ e-mail: n.nima1376@gmail.com legal analysis of the nature of cyber currency in iran: a comparison to eu law nima norouzi* islamic azad university, iran abstract: electronic money as the monetary value stored in an electronic instrument is the last step in the gradual evolution of money, described as the immaterialization and invisibility of money. it is an emerging phenomenon that can perform the functions and duties of money. this study aimed to investigate the legal concept of cyber currency in iran-islamic and eu law in a comparative view. this study mainly considered e-money as a payment method and discussed it from different perspectives. in analyzing the legal nature of this phenomenon, it used two different approaches by combining an empirical-analytical method and a comparative study. the first approach was to analyze the nature of electronic money as a type of money. the second was to analyze the nature of electronic money in the light of non-monetary theories and describe it as one of the legal institutions used in business. this study concluded that electronic money would have different legal effects in its legal analysis, depending on who the publisher and acceptor are and how its publication and circulation process is defined and explained. the description of electronic money in the form of non-monetary theories ignored its role as an efficient payment tool in today's advanced business environment. keywords: electronic money, cyber currency, islamic law. copyright © 2021 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 21/07/2021 reviewed: 26/08/2021 revised: 29/09/2021 accepted: 30/09/2021 how to cite: norouzi, nima, “legal analysis of the nature of cyber currency in iran: a comparison to eu law” (2021) 2:2 indonesian journal of law and society 165-196, online: <https://doi.org/ 10.19184/ijls.v2i2.26660>. 166 | legal analysis of the nature of cyber currency in iran: a comparison to eu law i. introduction the use of electronic money is described as a process of immaterialization and invalidity of money.1 this emerging phenomenon, which is technically undergoing its development process and economically gradually opening its place among monetary instruments as a means of payment in retail exchanges, is gradually gaining attention.2 then, the national and regional currencies are regulated, with the european union leading the way in issuing guidelines on e-money.3 there have been rare existing literature that investigated the nature of emoney. mengjia argued that e-money is not a real currency and it possesses some nature and functions of currency.4 to some extent, the circulation is restricted within cyberspace, a measure of relative values and a payment tool.5 another study by zharova and lloyd lacked a conceptual framework of the cyber-currency that concerned the use of crypto-currency with specific reference to the situation in russia.6 a variety of such systems exist, like bitcoin, but it is perhaps the best-known example and will be used as synonymous with the concept throughout this article.7 also, breu studied blockchain technology and its future legal challenges.8 although this study was a turning point in this field, it was case limited, and no conceptual legal 1 faraz adam, “fatawa analysis of bitcoin” in halal cryptocurrency management (palgrave macmillan, 2019). at 133-147. 2 habib farrukh, “fintech, digital currency and the future of islamic finance” in a critical analysis of bitcoin from islamic legal perspective (palgrave macmillan, 2021). at 9-29. 3 in the recent period, many countries such as the united states, australia, russia, china, ukraine, indonesia, and singapore regulated cyber currency. 4 mengjia, y. u. "analysis of impact and nature of cyber virtual currency based qb." business economy 2014 (2014): 16. 5 ibid. 6 anna zharova & ian lloyd, “an examination of the experience of cryptocurrency use in russia. in search of better practice” (2018) 34:6 computer law & security review 1300–1313. 7 ibid. 8 stephan breu, “are blockchains and cybercurrencies demanding a new legislative framework” (2018) 1 journal law and digital economy. 167 | indonesian journal of law and society analysis in terms of evolutionary, empirical, or analytic methods was implemented.9 this study was based on the hypothesis that electronic money for economic functions can perform functions such as legal money or written money, but legally following these rules and regulations on the electronic transfer of funds and the conditions of activity of electronic money publishers. the european parliament and the council of europe have inspired european national systems, first with the adoption of directive 2000/46/ec and, more recently, with directive 2009/110/ec. in iran, so far, no regulations have been enacted on electronic money in a specific sense, and regulations such as the regulations on the use of electronic money services, approved by the cabinet on 5/5/2005,10 regulate its general meaning and electronic transmission. the publisher and acceptor and how the publication and circulation process is defined and explained will have different legal effects. two descriptive methods have been used, and the approach of european systems, especially france and the american system,11 as a typical model on the one hand, and islamic law as reflected in the views of jurisprudential thinkers, the other hand, is different. electronic money is used in the banking literature in both general and specific senses. in a general sense, emoney encompasses all forms of electronic payment.12 in its specific sense, polyelectronics is the monetary value stored in an electronic instrument 9 ibid. 10 in its specific sense, electronic money differs from the methods of electronic payment or transfer of funds (access products) that enable customers to use electronic means of communication to access traditional payment services. this means using a personal computer and the internet or mobile phones and telephone lines to pay for an electronic bank account and pay by credit or debit card, typically requiring online communication and verification. 11 a manimuthu et al., "a literature review on bitcoin: transformation of crypto currency into a global phenomenon" (2019) ieee engineering management review at 28–35. 12 luqman nurhisam, “bitcoin: islamic law perspective” (2017) 5:2 qudus international journal of islamic studies. 168 | legal analysis of the nature of cyber currency in iran: a comparison to eu law issued in exchange for the receipt of funds and accepted as a means of payment13 by natural persons or legal entities other than the issuer. this study aimed to analyze the concept of the cyber currency in the iranislamic judicial system and compare it with the eu law.14 in particular, it reviewed the evolution of the monetary law and then compared principles and theories of this field.15 then, the most unified and aligned theories will be chosen to conceptualize the cyber currency in iran-islamic law.16 finally, this evolutionary-analytic study will be compared with the latest legislation of the eu region, mainly french law, due to its compatibility with islamic law. this study is structured into three sections. the first section discusses the nature of cyber currency that mainly considers the evolution of money and structurize its legal entity through time. the second section studies the cyber currency using the results of evolutionary studies of the monetary theories. this section conceptualizes the cyber currency in the iran-islamic jurisprudence. the third section discusses the payment in cyber currency and its banking deposition. ii. methods given that this study was to analyze the cyber currency in the iran-islamic judicial system and compare it with the eu law, the research method in this research was empirical-analytical. the empirical analysis is an evidence-based approach to the study and interpretation of information. it never gives an absolute answer, but only a most likely answer based on probability. the concept in this study was identified using theoretical 13 electronic money products are sometimes card-based (storing value in a microprocessor chip housed in a plastic card) and sometimes software-based (specialized software installed on pcs). 14 stjepan begusic, et al., "scaling properties of extreme price fluctuations in bitcoin markets" (2018) 510 physica a: statistical mechanics and its applications at 400406. 15 alam nafis, lokesh gupta & zameni abdolhossein, “cryptocurrency and islamic finance” in fintech and islamic finance (palgrave macmillan, 2019) at 99-118. 16 adam, mufti faraz & mufti a k barkatulla, “currency in islamic law: a sharī’ ah analysis of bitcoin” in fintech in islamic financ (routledge, 2019) at 120-130. 169 | indonesian journal of law and society literature and legal sources of the iranian legal system, imamieh jurisprudence, and eu (mainly french) law. after categorizing and analyzing the content, the existing concepts were materialized, and their standing in the current financial, economic, and trade legal structure of mentioned legal systems was discussed. the present research was empirical because it studied the concepts, using it to define the standing place of the cyber currency in the mentioned legal systems and how the law should treat the litigation on the cyber currency present strategies for practically improving this system. also, comparative methods have been used to compare e-money legislation between european systems, especially france and the american system, as a typical model, and iranislamic law as reflected in the views of jurisprudential thinkers. the comparison between islamic-iranian and eu law is selected because of two reasons. first, the rapidly growing crypto-currency demand in iran is causing a great need for strong legislation in this field to help to solve the possible upcoming legal cases. second, the eu has one of the earliest legislations in crypto-currency, and its experience is tested and can be helpful for countries lacking this legal infrastructure like iran. iii. the nature of cyber currency legal money or money, of which banknotes and coins are the instances, form a bank's currency.17 from the theoretical point of view, in electronic money, legal description and analysis of its nature are considered money. to prove the proposition that electronic money is money, we must first review and re-analyze the meaning and nature of each type of money and apply it to the state of electronic money.18 before, examine the functions, economics, and duties. the legal nature of money and its characteristics is 17 ruoke yang, “when is bitcoin a security under us securities law” (2013) 18 j tech l & pol’y at 99. 18 angela sm irwin & caitlin dawson, “following the cyber money trail: global challenges when investigating ransomware attacks and how regulation can help” (2019) 22:2 journal of money laundering control. 170 | legal analysis of the nature of cyber currency in iran: a comparison to eu law required as a scientific introduction. therefore, it will follow the topics of this speech in three parts. a. characteristics and functions of money from an economic point of view, money has at least three main functions.19 money is an instrument or medium of exchange, a unit of calculation or measurement of value, a means of preserving and storing value. although money today is thematically diversified and developed, there is no doubt that money's most important function and characteristic are the means of its exchange. according to some economists, only objects have this function. widely accepted as intermediaries of exchange, they can be described as money. as jean carbonier, the french jurist, pointed out: however, money is an intermediary of exchange and a means of payment; not every means of payment is money because money, in addition to fulfilling its monetary obligation, is a religion of muscat. it also has. therefore, any means of payment must include all the characteristics of money.20 money is not only a means of payment; in its function as a common currency. it is a means and a tool for measuring the value and valuation of objects that have a rational benefit and economic value and are considered in the legal term of money. in other words, currencies determine the amount of tax and price of objects. each unit of the common currency, which is the unit of calculation and measurement, is an ideal that is necessarily defined by a name such as rial, euro, and dollar and acts as a reference with society's monetary system. a set of monetary units makes up a sum of money. however, this ideal unit requires an intermediary or device to be included for storage and exchange. the instrument in which monetary units are included, sometimes in coins and sometimes in banknotes, is called a monetary 19 mufti f adam, “bitcoin: shariah compliant” (2017) amanah finance consultancy 2017 at 1-54. 20 mark holub & jackie johnson, “bitcoin research across disciplines” (2018) 34 the information society at 114-126. 171 | indonesian journal of law and society document or monetary instrument in legal analysis.21 however, the common currency in any monetary system is the pure element of money, and the unit of utility used to determine the value of services and commodity needed by the people of the society is used, whether it wants to be given a material form through aggregation and inclusion in an intermediary. b. cyber and traditional currencies to describe and analyze the nature of electronic money as money, we must first analyze the nature of money itself to apply the reality of electronic money to it. while some economists predict that money will disappear in the future by introducing new technologies, some legal experts believe that money is still an unknown quantity from a legal point of view. although pervasive in economic relations, money is generally devoid of legal theory. the few legal definitions of money are largely based on its functions and functions as a payment unit.22 according to some french law authors, they define exchange, lawyers' view of money is principled mainly from law and obligations arising from its application. less attention is paid to the obligations arising from its creation and publication. however, experts agree about the nature of money made from valuables such as gold and silver. because in these cases, material and physical property with intrinsic tax and value, due to the definition of three functions for it, played the role of money and intermediary of exchange. so, logically, we should focus on the current examples of legal tender and money, namely coins and banknotes. in the evolution of money, paper money or banknotes at the beginning of its existence expressed a claim and demand on the part of its publisher. when the convertible currency system was established, and the currencies were defined based on the number of precious metals, gold, and silver, the 21 m kabir hassan, mohammad s karim & aishath muneezac, “a conventional and sharīʿah analysis of bitcoin” (2020) 35:1–2 arab law quarterly at 155-189. 22 evan l greebel, et al., "recent key bitcoin and virtual currency regulatory and law enforcement developments” (2015) 16:1 journal of investment compliance. 172 | legal analysis of the nature of cyber currency in iran: a comparison to eu law banknote issuer bank backed and issued banknotes. it was based on the gold and silver it had stored and had to exchange it for gold or its equivalent at the holder's request.23 for example, according to article 17 of the law of 22 april 1806, banknotes were normally payable to the holder in french law. the person receiving the bonds appointed the issuing bank as the debtor rather than the debtor. he counted the bills he had delivered to him. the banknote was considered a debt document of the issuer or a document of the holder. it could be transferred by receipt and contract. in this system, the banknote represented a transferable personal financial or religious right. hence, the legal nature of this type of banknote was similar to a promissory note. it represented a religious right or a transferable claim in favor of the holder, except that the restrictions and formal conditions of the promissory note were removed and its economic function and legal effect. it was completely different in exchanges.24 these banknotes had the effect of cash payment, while the promissory note is a non-cash payment instrument. the situation was similar in other european-american monetary systems with similar financial banking systems. thus, money with backing or convertible money was, by nature, debt and a payable obligation of the issuer and a religious right or claim of the holder. the monetary document representing it, namely banknotes and coins, indicated that religion and demand. in other words, this type of banknote or coin was not property per se but indicated property, and what was taxed and considered property was the same holder of the banknote from the issuing bank. because private banks also issued banknotes during the period in some countries, such as the united states, the exchange value of such banknotes depended on the publisher's credit and the public's confidence in the publisher's financial ability.25 23 wulf a kaal, “decentralization-past, present, and future” (2019) 19–23 u of st thomas (minnesota) legal studies research paper. 24 abbas mirakhor, iqbal zamir & seyed k sadr, handbook of ethics of islamic economics and finance (walter de gruyter gmbh & co kg, 2020). 25 in the united states, since 1933, coins and banknotes issued by the federal reserve are the only legal forms of polling in that country that derive their value from law and public trust. 173 | indonesian journal of law and society based on this analysis, the french supreme court, in its judgment of 7 april 1856, held that the tax on banknotes of the bank of france was based on pure trust. leaving aside the support of gold and silver and the tendency of monetary systems to convert non-convertible currencies, the legal nature of money changed completely. in french banking law, this system was implemented following the law of 1 october 1936, and according to it, the bank of france was released from the obligation to repay issued banknotes or coins. a change has occurred in other countries, such as the united states.26 as a result, unlike in the past, the current banknote is neither a payable obligation nor a religious right of the holder. banknotes do not indicate property but are themselves property, money whose value and tax are credit and derive from the law. in other words, the value of money is determined by the law and is taxed by law. therefore, in many national laws, the acceptance of common currency by the general public and legal persons is mandatory.27 for example, under article 5 of the french law of 4 august 1993, the bank of france is the only authorized issuer of banknotes accepted as legal tender. any person who owes money for transactions can fulfill his debt by paying an amount equal to the amount owed to his creditor, and the creditor is required to accept those bills (currency) as a means of payment. legal currency is the consequence of the irreversible currency system. as soon as the legislators decide that the banknotes are irrevocable, the holders of the banknotes will be backed up. this legal guarantee must be provided, and the depositors can provide the money. goods and services should be rejected and refused. on the other hand, the trading party will also accept the monetary symbol based on its face value (the number mentioned on the sheet).to be sure, if she/he is sure this monetary symbol is accepted at the same value. thus, in a non-exchangeable legal monetary system, monetary symbols, both banknotes and coins, have their exchange power from the law and government support and public trust and acceptance as a valuable 26 john o mcginnis & kyle roche, “bitcoin: order without law in the digital age” (2019) 94 ind lj at 1497. 27 pietro ortolani, “self-enforcing online dispute resolution: lessons from bitcoin” (2016) 36:3 oxford journal of legal studies at 595-629. 174 | legal analysis of the nature of cyber currency in iran: a comparison to eu law object.28 people accept common currency in exchanging goods and services simply because they trust that the acceptance of that money will continue in exchange and serve as a store of lasting value. central banks are also responsible for maintaining their integrity and originality (original exchange value) by controlling the money in circulation. c. the nature of money in islamic legal thought among the thinkers of islamic law, martyr sadraz is one of the pioneers in analyzing the nature of money.29 after emphasizing the intrinsic value of gold and silver coins, he has made a serious distinction between banknotes that can be converted into gold and silver and current banknotes, which according to the law of publishers, are exempt from converting them into gold. regarding the second type, like the current banknotes, which have no gold backing, and the issuer has no obligation to convert them into gold and precious metals. it is believed that these are mandatory cash bonds, and their taxation is purely credit and has no intrinsic value and price. law and government are enacted. however, members of a society accept these securities as the price of the transaction, and the transaction takes place. experts in islamic law agree on the validity of the current currency (whether coins or banknotes) but differ in the quality of their value and tax. the current views can be divided into two groups and in general. d. purchasing power theory the creator of this theory is shahid sadr, who considers the current money as a proverb whose proximity is not in the paper of banknotes and the number of units written on it,30 but as the proverb of money embodies the 28 ginevra peruginelli & sebastiano faro, “research quality evaluation: the case of legal studies” in the evaluation of research in social sciences and humanities (2018) at 103-129. 29 dodik siswantoro, rangga handika & aria f mita, “the requirements of cryptocurrency for money, an islamic view” (2020) 6:1 heliyon. 30 abulfathi i s al-hussaini, et al., "factors influencing adoption of cryptocurrencybased transaction from an islamic perspective" (2020) 20:4 global journal of computer science and technology. 175 | indonesian journal of law and society real price, and the real value of money is its purchase power. some other scholars have expressed the same theory with different interpretations. for example, a banknote is something that a reputable authority has given tax credit and value, i.e., the legislator, in purchasing power.31 in other words, the whole universe is money in exchange value and purchasing power. therefore, in monetary debt repayment, something of the same name is not considered a repayable alternative. the match is only equal to the same concept in terms of price, value, and tax. according to some civil rights scholars, banknotes, which are so popularly referred to as money, are not money but represent a certain amount of money and credit value. the truth of money is its exchange and credit value, and in monetary obligations, the same amount is owed to the person. if a person ten years ago was obliged to pay one million rials to another, today she/he must pay that amount to the creditor that the tax was equivalent to one million rials ten years ago. it is equal in terms of exchange value. e. nominal value theory according to this view, credit money is no different in terms of money and the value of exchanges with real money. it exempts in terms of non-money, like consumption value. while the purchasing power is monetary, sometimes their value and purchasing power decrease in coins and silver. we must also believe in reparation, while none of the jurists has issued that fatwa.32 therefore, the nature of money depends not on its purchasing power but the principle of exchange value and not its value, and the principle of exchange value is also a relative feature of money. in addition, if the purchasing power is the same as its actual exchange price, then financial money is not the same and should be considered a price commodity. in contrast, the jurists do not consider it a price commodity. in summarizing and comparing the above two theories, it should be said: although each of them has some aspects of the reality of rabian money, 31 siswantoro, handika & mita, supra note 29. 32 adam, supra note 1 at 133-147. 176 | legal analysis of the nature of cyber currency in iran: a comparison to eu law each of them has some objections.33 the most important flaws of the theory of purchasing power are the confusion between the concepts of property and taxation and the confusion between the nature of money and the nature of religion and monetary commitment. in addition, the acceptance of the theory of purchasing power has legal implications and implications that the proponents of the theory themselves will not be bound. the theory of purchasing power has no jurisprudential or legal evidence for its claim, and the legal texts imply otherwise. in relations between the creditor and the debtor, especially concerning monetary obligations, as stated in article 1895 of the french civil code and article 650 of the iranian civil code, the repayment of the agreed amount in monetary units is the subject of the debt, and the payment of this amount owes the debtor makes berry.34 many contemporary jurists also believe that the monetary obligation to pay the same amount (the same amount of banknotes) leads to the acquittal of liability. the decrease or increase in the purchasing power of money does not affect this ruling. in relations between issuers (central banks) and banknote holders, reducing purchasing power does not create civil liability for the issuer. the responsibility of governments is only political responsibility and accountability to parliament for overseeing affairs, and states guarantee the legal value of legal money and money. they are not purchasing power and, on the contrary, international regulations specify the non-responsibility of states for the devaluation and purchasing power of the national currency.35 regardless of theoretical issues, contemporary jurists have used the traditional concept of money as a criterion by standardizing customs in 33 nashirah abu bakar, sofian rosbi & kiyozaki uzaki, “cryptocurrency framework diagnostics from islamic finance perspective: a new insight of bitcoin system transaction” (2017) 4:1 international journal of management science and business administration at 19-28. 34 breu, supra note 8. 35 as a change in the value of a currency is not a breach of international law, a state is not liable for its consequences on holders of its currency or on creditors or debtors to obligations denominated in that currency. 177 | indonesian journal of law and society explaining and recognizing issues.36 although the price of other things is measured in money, the money itself is a parable, and the guarantee is a parable. the price of a banknote does not fall short of what is set for it. a thousand dollar bill is never nine hundred dollars and is always the same as a thousand dollars without decreasing purchasing power.37 however, the difference between the currencies in any legal monetary system with banknotes or coins denoting a number or fraction of that currency is clear, and banknotes are casually referred to as money. it is not money and rather, it represents a quantity of money and credit value, and the truth of money is its exchange and credit value. some certain facts of money have been ignored. according to this theory, the ownership of money as an object of economic value and taxation is eliminated, while money is purely taxed.38 acceptance of such a theory in imami jurisprudence, which distinguishes between the concepts of wealth and tax, is not acceptable. the distinction between the concept of wealth and taxation and the duality of the two is a matter of custom. banknotes and coins are indeed a monetary symbol or, in our view, a monetary document representing a certain amount of money. however, the custom and wisdom of the wise considered these objects as property and gave them tax and economic value because of their exchange power. hence, in the legal literature today, legal tender money (banknotes and coins) is considered a property of its nature. given the custom nature of the concept of property, such a description of common currencies in different systems of money and movable property is quite acceptable considering that it has all the characteristics of movable property. in jurisprudential literature, it is almost complete or almost complete.39 they consider cash as property and 36 paul anning, stuart hoegner & jerry brito, the law of bitcoin (bloomington: iuniverse, 2015). 37 adam, supra note 19. 38 mustapha abubakar, m kabir hassan & muhammad a haruna, “cryptocurrency tide and islamic finance development: any issue?” 39 mohd ma’sum billah, islamic financial products: principles, instruments and structures (palgrave macmillan, 2019) at 413–434. 178 | legal analysis of the nature of cyber currency in iran: a comparison to eu law apply all property rulings to guarantee loss and usurpation and consider them as property and not as a sign of property. iv. conceptualizing cyber currency as money if e-money is a new form of money in the true sense of the word, it must have the basic characteristics of money, and the nature of money in the legal analysis must apply to it. electronic money can perform a common currency's economic functions and duties and have desirable monetary characteristics such as anonymity, portability, durability, divisibility, uniformity, and uniformity. from a legal point of view, the fundamental and debatable issues regarding e-money in comparison and comparison with the legal tender are mainly two things: the ability and value of the exchanges to be used as a general means of payment and its units to be included in a monetary document. act as common currency as a means of storing value. a. electronic money as a means of payment and its exchange value electronic money in its current state is the result of an exchange. in a technical and contractual process, the publisher produces an electronic mark as electronic money and in exchange for the receipt of the equivalent amount of the applicant. an electronic money issuer unlike a legal money issuer, one does not create money but exchanges electronic signs describing electronic money with legal money at the applicant's disposal. based on this fact, e-money publishers commit to repurchase the exchanged e-money and instead pay the equivalent to the e-money holders. thus, electronic money is the product of agreement and is exchanged for legal money at the beginning and end of its life cycle.40 ensuring that the holder can convert the electronic monetary value back into banknotes increases public confidence in e-money as an effective and reliable alternative to coins and 40 stephan breu & c paterson, “blockchains and cyber currencies challenging antitrust and competition law” (2019) law, ethics society: historical contemporary perspectives at 205-215. 179 | indonesian journal of law and society banknotes. however, there is no legal redemption capacity in the currency, and there is no such obligation for the issuer (central bank). businesses accepting electronic money receive the required electronic value of the transaction price from the consumer in exchange for the goods or services provided to the consumer41, and thus sellers based on the acquisition of electronic monetary units. the electronic or computer memory of the buyer is transmitted and registered in their system. however, concerning the buyer, it is assumed that the transaction price has been paid. then, the electronic monetary value is considered as a means of payment. the buyer's obligation to pay the price is nullified. because of this feature, one electron coin should be considered an alternative to legal tender (banknotes).42 electronic money is available like a banknote and makes payment possible. payment by electronic money does not require a connection to a bank account and funds transfer from one account to another. like banknotes, it makes it possible to pay the price, except that the banknote's power is a valid tax due to tax credit. the means of payment is electronic money based on the agreement between the buyer and the seller and based on the publisher's commitment to repay it. according to what we have already said in explaining the nature of legal tender, today's banknotes are movable by their very nature. they have exchanged for the transaction themselves, and by handing them over to the seller of the goods or services, the cash is exchanged, and final payment is made. nevertheless, do the e-currencies exchanged between e-wallet holders and sellers have such a legal nature and function? if electronic currencies are considered one of the exchanges and the subject of exchange, they must be property in themselves and not be considered money.43 assuming they are property, they are either movable property or intangible property. in the first case, we are against the assumption. electronic monetary units cannot be classified as tangible property because they have 41 mark e burge, “apple pay, bitcoin, and consumers: the abcs of future public payments law” (2015) 67 hastings lj at 1493. 42 eric d chason, “how bitcoin functions as property law” (2019) 49 seton hall l rev at 129. 43 joshua at fairfield, “smart contracts, bitcoin bots, and consumer protection” (2014) 71 wash & lee l rev online at 35. 180 | legal analysis of the nature of cyber currency in iran: a comparison to eu law no physical or physical form. furthermore, there is no doubt that they are immaterial and intangible. at present, when the issuers of electronic money are financial institutions and commercial banks. electronic money has not gained the same economic and legal status as legal tender (banknotes and coins). simultaneously, the publisher's obligation to repay it and convert it into legal tender or hard currency electronic money and its legal requirements. acceptance of e-money by businesses is also based on the feature that the transferee (current holder) can also demand a refund from the publisher.44from the point of view of the roman jurist, electronic money implies a claim or a religious or personal right. it raises the question of whether electronic money is intangible property that one owes a claim to it and is it continuously? or is it just a claim against the publisher? the fact is that e-money has no independent value other than the valueseeking reflected in the common amount of money. because the publisher does not want or convert these electronic units into legal or bank currency, no trader or seller will accept them and have no exchange value. thus, emoney issued by commercial banks and financial institutions with legal tender issued by central banks has this inherent difference: it is not considered movable in itself and taxed by the creditor. it is legal or written. electronic money can be a means of payment, but its mechanism of action is quite different from legal money (banknotes and coins). payment by electronic money is based on the transfer request to the seller (i.e., the transferee of one electron money) with the feature that the issuer usually does not recognize the new creditor until the creditor converts the electronic units from legal tender or currency. however, the above analysis does not prevent money from being considered electronic money. the bottom line is that e-money is not a non-repayable or non-repayable currency like the current currency of the issuer. however, it can be a type of money that can be converted into a 44 angela sm irwin & adam b turner, “illicit bitcoin transactions: challenges in getting to the who, what, when and where” (2018) journal of money laundering control. 181 | indonesian journal of law and society generation of paper money that can be converted or pledged. the subcurrency of money is not convertibility or non-conversion. however, its exchangeability and acceptance are the prices of a transaction. it should be added that today there are electronic payment schemes available to customers in anchors or e-wallets with the ability to recharge or without it by some economic enterprises that are only in non-real exchanges.45 its services can be used. (like telephone cards and cards of metro companies) these schemes do not provide e-money in their sense. rather, they are merely an advance payment mechanism. b. electronic money as a monetary document at present, money in common units is contained in three instruments or monetary documents: coins and banknotes, and bank accounts (writing money). these three monetary instruments are of exchange value and can act as a means of storing value. individuals usually maintain a portion of their assets, which is interpreted as a person's cash assets. according to the analysis, e-money does not know rapol. however, it is considered a monetary obligation, and e-money lacks the characteristic of being an instrument or a monetary document and can be considered a monetary commitment document. the distinction between the two is also clear. a monetary deed has a tangible property and the exchange value and power of fulfilling the religion. however, a monetary commitment deed is not tangible property and is considered a property reflected in that property.46 it is transferable. in other words, the delivery or transfer of a monetary commitment document can act as a means of repaying and paying in another transaction if accompanied by a transfer request. however, electronic money is not considered a kind of money in the sense of convertible money, and it is similar to previous banknotes. an electronic document containing monetary value can be interpreted as a document and 45 alexander kroeger & asani sarkar, “the law of one bitcoin price?” (2017) federal reserve bank of philadelphia. 46 kusuma teddy, “cryptocurrency for commodity futures trade in indonesia: perspective of islamic law” (2020) 37:1 journal of islamic banking & finance. 182 | legal analysis of the nature of cyber currency in iran: a comparison to eu law monetary instrument because the demand is embodied and objectified in the self-document. v. cyber deposit banknotes and coins are not the only documents and tools for maintaining monetary units. economists have realized over time that the assets of individuals' bank accounts are also money because they have the same legal functions. the balance of a bank account indicates the amount of money, i.e., a certain amount of monetary units (usd 1,000, for example), independent of the monetary documents that contain it (for example, twenty dollar bills). it is independent of claims that act as a means of payment and transfer in business (such as checks).47 thus, bank money is an amount of money that is registered in a bank account. it is transferred from one account to another through a non-cash payment device, such as a check. in other words, the term bank or written money has various documents such as checks, bank cards, and credit transfers (l/c) that allow the circulation of writing money. in the legal analysis of the relationship between the depositor and the bank, the bank owns bank (current) and savings bank deposits. the bank is obliged to repay the deposit amount to the account holder(the nominal value of the deposited units). for this reason, the bank can use the funds it has received and take ownership of them. the use of non-cash means of payment, such as a check, is the transfer of an account holder's order to pay all or part of the account balance or its transfer to the beneficiary's account. therefore, even if the bank confirms the check, the funds are not transferred. however, only the money transfer mechanism of the issuer is withdrawn from the bank. in french jurisprudence and following article 62 of the czech rules of procedure, the issuance of a check is effected if an impossible bank pays the check and 47 jon truby, “decarbonizing bitcoin: law and policy choices for reducing the energy consumption of blockchain technologies and digital currencies” (2018) 44 energy research & social science at 399-410. 183 | indonesian journal of law and society if the bank imposes the funds on another bank account.48 the bank does not transfer a claim or religious right but transfers an amount of money (i.e., units of common currency) recorded in the beneficiary's account. bank money or writing is a form of money because it is a reserve of value (units of common currency) that can be transferred from one account to another and act as a means of payment in transactions. a. applying the nature of written money to electronic money electronic money schemes have several significant differences from the conventional bank deposit system. first, the funds that the publisher first receives in exchange for the issuance of electronic money are not recorded to a specific bearer. its repayment is not necessarily to a specific person. although some legal writers do not consider this difference significant and believe that financial institutions should account for customer deposits, they do not have a duty to record it in their offices.49 an electronic money storage card is like a savings account in which the customer's account balance is recorded and is owned by the customer. second, if the holder uses electronic money, payment requires immediate change and reduction of their e-wallet inventory and the increase of the accepting device (seller).50 however, in the payment of the bank account balance (i.e., payment with written money), the payment is made by check or bank card of the buyer, the payment is made in the form of funds transfer, and the buyer's account owes the desired amount and the seller's account. bank accounts assume the role of a monetary document. however, unlike other monetary instruments, such as banknotes and coins, they do not cause the circulation and circulation of common units. bono shooter points 48 ben van vliet, “an alternative model of metcalfe’s law for valuing bitcoin” (2018) 165 economics letters at 70-72. 49 spencer wheatley, et al., "are bitcoin bubbles predictable? combining a generalized metcalfe's law and the log-periodic power law singularity model" (2019) 6:6 royal society open science. 50 lawrence j trautman, “bitcoin, virtual currencies, and the struggle of law and regulation to keep the peace” (2018) 102 marq l rev at 447. 184 | legal analysis of the nature of cyber currency in iran: a comparison to eu law out, unlike banknotes and coins, which are both monetary documents and coins. they are also a means of payment; writing money is just money and not a means of payment.51 payment by written or banknotes is possible with the help of payment instruments such as checks and bank cards. these devices make the payment by accessing the account holder's bank (based on the transfer of funds to the creditor's account) through a double exchange (debiting the payer's account and settling the payer's account). e-money is quite the opposite. electronic money is not considered a monetary document. however, it is a means of payment, and as mentioned, this payment does not require the transfer of funds from one person's account to another. while from the buyer's point of view, final payment has been made by handing over electronic money to the seller, or more precisely, by transferring electronic units from the buyer's card to the seller's system. however, according to the publisher, no money transfer has taken place between the buyer and seller. in a single (aggregate) account, the electronic money issuer records all the monetary amounts received in exchange for the issued electronic units. transferring electronic money from the buyer to the seller does not change the issuer's debit balance. in an e-money payment system, a transfer of money occurs when the seller (the e-money accepting firm) asks the issuer to convert the electronic units he accepted at the time of payment into legal or written money. although the aggregate account of the electronic money issuer acts as a store of value, the electronic units are not considered property in themselves. they merely represent the claimants' claim against the account. therefore, they are not a new form of monetary instrument and are merely a new means of payment. therefore, due to the significant differences between one electron coin and written money (bank deposits) and the mechanism of action of the two, it is somewhat theoretically difficult to apply the nature of written money to electronic money. 51 matthew p ponsford, “a comparative analysis of bitcoin and other decentralized virtual currencies: legal regulation in the people’s republic of china, canada, and the united states” (2015) 9 hkj legal stud at 29. 185 | indonesian journal of law and society in the case law, there is also a difference of opinion whether electronic money is of the nature of a deposit as subject to their regulations or a different nature. therefore, it is considered a general obligation moneyissuing institution other than a deposit. in ecb regulation 2001/13, the amount owed by the issuer in respect of issued electronic money is classified as deposit liabilities. however, in us federal regulations, the value stored in e-wallet smart cards is considered a general obligation, not a deposit.52 the importance of this description lies in the fact that in addition to making the issuance of e-money by non-banking institutions possible and excluding the proceeds from the rules and requirements of bank deposits. it also determines the legal nature of some legal writers who have likened online e-money only to a debit card or a debit card in a plan that allows access to the account holder.53some writings have used online emoney schemes as a form of cash and not a kind of deposit. however, if the funds that electronic money holders pay to publishers are a kind of deposit, and electronic tokens are tools that, firstly, are the reason and evidence of the funds deposited in favor of the holder and, secondly, have the means and tools to do so. instead, the repayment of the funds deposited with the issuer to the holder has transferred the electronic monetary sign. functional electronic signs are like checks, in which the holder can return some or all of the funds deposited with the publisher or transfer them to another. (article 310 of the iranian commercial code) some authors believe that the electronic money bag is like a savings account.54 when a customer wants to buy goods from a merchant, he presents the savings ledger to the merchant (as a representative and trustee), and he deducts an amount from the ledger and adds the same amount to his ledger credit. the above analysis is acceptable to the extent that the electronic money issuer of banks and financial and credit institutions and the relevant 52 max kubat, “virtual currency bitcoin in the scope of money definition and store of value” (2015) 30 procedia economics and finance at 409-416. 53 filka c windiastuti & fauzul h n athief, “inacoin cryptocurrency analysis: an islamic law perspective” (2019) 2:2 journal of islamic economic laws at 152-177. 54 mohamad roshan, mostafa mozafari & hanieh mirzayi, “jurisprudential and law investigation into bitcoins” (2019) 22:87 journal of law research at 49-78. 186 | legal analysis of the nature of cyber currency in iran: a comparison to eu law account is subject to the regulatory regulations of the central bank. because despite the mentioned differences, it performs the functions and duties of bank money. if payment instruments, i.e., electronic signs, are significantly different from checks. first, checks are non-cash means of payment, but it is assumed that electronic money is a primary means of payment. second, the ownership of electronic money, like a banknote, is subject to the rule, and its possession is the reason for the owner. usually, the issuer is not responsible for its loss or theft, and the real holder of the stolen electronic money card cannot be returned to the publisher. in contrast, the loss of an ordinary check does not deprive the holder of his legal right. he can receive the amount by using the provisions related to the loss of the check (article 14 of the penal code and article 314 of the code of criminal procedure). despite the differences of opinion that exist in different legal systems about the need for clear ownership of the check and limited transfer of its ownership,55 electronic money does not need to have a material aspect, and with the transfer of electronic bits, the ownership of the money passes to the new holder. b. non-monetary theories in analyzing the nature of electronic money according to the views that give electronic money a non-monetary nature, e-money is a claim against money in its legal analysis. these claims and claims are transmitted from one intermediary to another, from one electronic instrument to another, until they are converted and repaid by the publisher into legal tender. it may be argued that e-money is the issuer's electronic document of transferability and obligation, and the holder can use it in his exchanges as a means of fulfilling an obligation, and according to the prevailing legal system, by using the same legal establishment. assignment of the right (demand), remittance, sale, or peace of religion, transfer it to the transaction. however, the interpretation of e-money as a simple religion 55 navabpour alireza, yousefi ahmad ali & talebi mohammad, “jurisprudential analysis of cryptocurrencies’ functions-case study of bitcoin” (2019) 18:72 213– 243 at 213–243. 187 | indonesian journal of law and society and demand and its transfer in the traditional forms of the law of obligations is logical and true to its purpose. it makes its transfer subject to the procedures of assignment of students other than similar institutions in civil law. it also opens the door to objections and defenses related to the legal relationship between the claim contained in the electronic money and the underlying contract. in addition, such an approach deprives e-money of its legal benefits and economic functions as an instant and quasi-monetary means of payment. therefore, any legal analysis and interpretation of this phenomenon should be made to achieve its practical goals. c. analysis of electronic money as a document in the face of a digital carrier a "document in the form of a carrier" is a piece of paper or writing under which the issuer undertakes to pay a certain amount to any person who seizes and delivers it in a certain promise or upon request. the relationship of documents in the form of the carrier with commercial documents in the specific sense, general and specific, is modal. in our law, bonds and participation bonds are also examples of bearer documents. the document has several features in terms of legal status. article 320 of the commercial code of iran outlined that the possessor of the document is the owner of the document and the holder of the right to be listed in it unless proven otherwise. the current document, such as commercial documents, is itself a representative and the reason for employment is the signatory. the holder does not need any other reason to prove his claim. except in cases where the competent judicial authority or the police prohibit the payment of that document, the payment to the bearer shall release the debtor. in case of loss of the document, the creditor and the real holder of the document can demand his claim from the debtor through the legal formalities (articles 322 to 333 of the iranian commercial code). except in the case of a decree invalidating a document issued by a competent court, the debtor shall not be obliged to pay the document in the name of the bearer, except in return for obtaining a document or a court order to deposit the same amount in the box of justice (article 331 of iranian commercial code). documents as portable have the description of 188 | legal analysis of the nature of cyber currency in iran: a comparison to eu law transferability. their transfer to third parties is without formalities. it enables the holder to transfer it to another with a receipt and contract in a simple process and following the provisions of the commercial code. in addition to what is specified in the relevant regulations regarding commercial documents on the bearer's side. in some systems, the judicial procedure has applied the principle of not paying attention to the objections against the holder in good faith regarding all the documents on the bearer's side.56 due to this principle, the publishers cannot present the objections and defenses related to his relationship with the original holder of the document to the successive holders because they have promised to pay it to each holder. with the lack of endorsement of the document and its transfer by receipt and contract, the transferor of the document has limits. it has neither obligation nor responsibility in case of non-payment of the document nor debts and bankruptcy of the document's issuer. otherwise, he has secured the back of the document as a guarantor. however, in most national systems and international regulations, the positive value of message data is accepted. whenever there is a text required by law, the message data is written in the sentence. some legal analysts believe that something is more than a simple request and should be classified as a document in the carrier's face because electronic units represent all the documents in the carrier's face that are inserted in an electronic medium and have the effect of completing the transaction. according to this view, e-money, in addition to having the characteristics mentioned in the documents, has the power to act and, by transferring it to the next person, causes the debt of the transferor of the electronic money to be paid to the transferee. regarding the relationship between the electronic money holder and the publisher, its analysis as a document in the carrier's face can be rooted in the contract between the publisher and the first holder. electronic money is an anonymous document in which the creditor's name is not mentioned in this analysis. the publisher, as the debtor, undertakes to pay the amount to 56 mohammad mahdi soleymanipour, hamed sultaninejad & pourmotahar mahdi, “jurisprudential investigation into virtual money” (2017) 6:2 islamic finance research bi-quarterly journal. at 167-192. 189 | indonesian journal of law and society the holder of the document upon request. such an obligation as a general holder is described as an obligation in favor of a third party in the original contract. contracts will largely determine the rules and regulations governing this new anonymous document concluded between the issuer and the holder, the issuer and the commercial accepting companies, the issuer and the intermediary banks, and the clearing and settlement institutions.57 this digital document is not subject to the specific provisions of the commercial code and is not governed by the provisions of bill, promissory note, and check. however, the question arises as to whether the mere submission of the e-money and its transfer to the functional seller acts as a cash price and is considered a final payment.58 if the answer is yes, how is this process legally analyzed and according to the description of electronic money as a document in the carrier's status, and under what conditions does it break the buyer's obligation to pay the price? some french legal writers believe that payment by depositing a claim does not invalidate the debtor's debt. for this type of payment to achieve the full and final performance of the obligation, the creditor must agree that the first claimant must be considered fulfilled. this follows from the provisions of article 1275 of the french civil code, which states: in the representation and assignment by which the obligor introduces another obligor as the obligor and obliges the latter obligee against the obligor, the obligation does not become the obligation. it explicitly states that ebra, the obligor who made this transfer, intended. thus, the fall of the buyer's obligation to the seller is subject to the declaration of the seller's will and intention in this regard.59 doubt in this regard is how the seller must express his intention to inform the buyer. some commentators on french civil law believe that this intention should be explicitly stated and implicit. other commentators believe that there is no valid reason for such a condition and that the implicit intention must be considered sufficient, 57 ibid at 167-192. 58 reza mirzakhani & hosein ali sa’adi, “bitcoin and the financial-legal nature of digital money” (2018) 15:30 journal of iran’s economic essays at 71-92. 59 ibid. 190 | legal analysis of the nature of cyber currency in iran: a comparison to eu law provided it is definite and certain.60 if the agreements concluded between the issuer and the e-money accepting firms include conditions for the full and final fulfillment of the buyer's obligation, it can be a sufficient reason for the e-money acceptor's intention to issue it. according to the rules of iranian law, this payment process does not require the completion of the formalities mentioned above, and the holder of the electronic money can make the request reflected in it (which is considered the publisher's religion) in exchange for receiving goods or services in the form of a contract of sale or peace. or exchange service provider. given that the buyer's claim for the entire property is the responsibility of the issuer, the said exchange is subject to the buyer being the same or as a buyer, and if it is generally the responsibility of the seller, with the suspicion of invalidity of the sale of the goods to the whole. there will be an imam in jurisprudence. however, some scholars consider the sale of goods invalid if it requires the exchange of religion for religion. therefore, the analysis of the nature of electronic money in the form of a document in the form of a carrier with the characteristics mentioned above, features, and limitations, despite its relative desirability, makes the function of electronic money as a means of cash payment difficult in at least some cases. d. analysis of electronic money as a traveler's check electronic money is not a payment method associated with the holder's bank account and therefore is not a non-cash means of payment like a check. its owners generally do not have an account with the publisher. from the point of view of some researchers, the payment system is different from banknotes and different from bank accounts and traveler's checks because the method of issuance and its function is the same as a traveler's check. an amount of money is given to the issuer and issuer, which is the bank and the credit institution, in exchange for which a document and a tool are issued and placed at the disposal of the holder, 60 asghar mahmoudi, “a comparative analysis of crypto-currencies in the light of jurisprudence and law” (2019) 49:3 law quarterly at 503-522. 191 | indonesian journal of law and society which can be used to pay for goods and services obtained from commercial enterprises. accordingly, e-money has the same function and nature as a traveler's check, which gives the holder the means to pay for the goods or services required and the issuer an obligation to repay the amount defined in it to anyone who submits the card.61 in addition, a traveler's check generally contains a receipt based on which it can be freely circulated and transferred without the need for formal formalities. some authors distinguish between different electronic money schemes and consider its offline type as a traveler's check and its online type as a debit or debit card. in analyzing the legal nature of traveler's checks, this is a positive payment instrument, embodied and crystallized in the document. it is called check and quasimoney. in the case of e-money analysis as a traveler's check, its issuance and circulation in many legal systems will face the relevant legal restrictions. e. analysis of electronic money as the nature of special rights unlike a traveler check, e-money is an anonymous document contained in a microchip and not a paper medium. thus, e-money is inherently transferable securities, and, like other anonymous securities, its tax is embodied and documented in the document or the sign. nevertheless, some authors believe that electronic money is an electronic document that has its nature and also exists. the immaterialization of a pre-existing paper document (such as a traveler check) is not.62 however, this view does not provide a clear analysis of the specific legal nature of the application. contrary to the above view, it is sometimes said that electronic money does not have a special legal nature. its electronic component only provides a way to record information and send messages.63 from this point of view, 61 soleymanipour, sultaninejad & mahdi, supra note 56 at 167-192. 62 morteza chitsazian & zahra khorsandi, “digital currencies from the perspective of jurisprudence and law” (2021) 8:3 international journal of multicultural and multireligious understanding. at 88-96. 63 al-hussaini et al, supra note 30. 192 | legal analysis of the nature of cyber currency in iran: a comparison to eu law electronic money is not a new nature that requires the invention of new legal rules and easily fits into existing legal frameworks. vi. conclusion electronic money emerges different from electronic methods of transferring funds. in analyzing the legal nature of this phenomenon, two different approaches can be adopted. the first approach is to analyze the nature of electronic money as a kind of money. based on the views presented on the nature of money presented and reviewed in this study, describing the nature of electronic money as a type of money does not seem so difficult. given the literature and theories in this field, two main approaches have been classified. the first one is monetary theories which consider e-money as something with the natural value same as the traditional value money has, and it can be considered under current financial and monetary legislation. however, the second approach considers the non-monetary theories and states that the traditional monetary legislation cannot be applied to many legal cases related to e-money transactions. it suggests that a hybrid financial market competitive monetary legislation must be established for e-money cases. therefore, the second approach is the most effective, and e-money needs to be considered a separate monetary system with unique legislation. acknowledgments none. references abubakar, mustapha, m kabir hassan & muhammad a haruna, “cryptocurrency tide and islamic finance development: any issue?” adam, faraz, “fatawa analysis of bitcoin” in halal cryptocurrency management (palgrave macmillan, 2019). 193 | indonesian journal of law and society adam, mufti faraz & mufti a k barkatulla, “currency in islamic law: a sharī’ ah analysis of bitcoin” in fintech in islamic financ (routledge, 2019). adam, mufti f, “bitcoin: shariah compliant” (2017) amanah finance consultancy 2017. al-hussaini, abulfathi i s, et al., "factors influencing adoption of cryptocurrency-based transaction from an islamic perspective” (2020) 20:4 global journal of computer science and technology. alireza, navabpour, yousefi ahmad ali & talebi mohammad, “jurisprudential analysis of cryptocurrencies’ functions-case study of bitcoin” (2019) 18:72 213–243. anning, paul, stuart hoegner & jerry brito, the law of bitcoin (bloomington: iuniverse, 2015). bakar, nashirah abu, sofian rosbi & kiyozaki uzaki, “cryptocurrency framework diagnostics from islamic finance perspective: a new insight of bitcoin system transaction” (2017) 4:1 international journal of management science and business administration. begusic, stjepan, et al., "scaling properties of extreme price fluctuations in bitcoin markets" (2018) 510 physica a: statistical mechanics and its applications. billah, mohd ma’sum, islamic financial products: principles, instruments and structures (palgrave macmillan, 2019). breu, stephan, “are blockchains and cybercurrencies demanding a new legislative framework” (2018) 1 journal law and digital economy. breu, stephan & c paterson, “blockchains and cyber currencies challenging antitrust and competition law” (2019) law, ethics society: historical contemporary perspectives. burge, mark e, “apple pay, bitcoin, and consumers: the abcs of future public payments law” (2015) 67 hastings lj. chason, eric d, “how bitcoin functions as property law” (2019) 49 seton hall l rev. 194 | legal analysis of the nature of cyber currency in iran: a comparison to eu law chitsazian, morteza & zahra khorsandi, “digital currencies from the perspective of jurisprudence and law” (2021) 8:3 international journal of multicultural and multireligious understanding. fairfield, joshua at, “smart contracts, bitcoin bots, and consumer protection” (2014) 71 wash & lee l rev online. farrukh, habib, “fintech, digital currency and the future of islamic finance” in a critical analysis of bitcoin from islamic legal perspective (palgrave macmillan, 2021). greebel, evan l et al, “recent key bitcoin and virtual currency regulatory and law enforcement developments” (2015) 16:1 journal of investment compliance. hassan, m kabir, mohammad s karim & aishath muneezac, “a conventional and sharīʿah analysis of bitcoin” (2020) 35:1–2 arab law quarterly. holub, mark & jackie johnson, “bitcoin research across disciplines” (2018) 34 the information society. irwin, angela sm & caitlin dawson, “following the cyber money trail: global challenges when investigating ransomware attacks and how regulation can help” (2019) 22:2 journal of money laundering control. irwin, angela sm & adam b turner, “illicit bitcoin transactions: challenges in getting to the who, what, when and where” (2018) journal of money laundering control. kaal, wulf a, “decentralization-past, present, and future” (2019) 19–23 u of st thomas (minnesota) legal studies research paper. kroeger, alexander & asani sarkar, “the law of one bitcoin price?” (2017) federal reserve bank of philadelphia. kubat, max, “virtual currency bitcoin in the scope of money definition and store of value” (2015) 30 procedia economics and finance. mahmoudi, asghar, “a comparative analysis of crypto-currencies in the light of jurisprudence and law” (2019) 49:3 law quarterly. 195 | indonesian journal of law and society manimuthu, a, et al., “a literature review on bitcoin: transformation of crypto currency into a global phenomenon” (2019) ieee engineering management review. mcginnis, john o & kyle roche, “bitcoin: order without law in the digital age” (2019) 94 ind lj. mengjia, y. u. "analysis of impact and nature of cyber virtual currency based qb." (2014) business economy. mirakhor, abbas, iqbal zamir & seyed k sadr, handbook of ethics of islamic economics and finance (walter de gruyter gmbh & co kg, 2020). mirzakhani, reza & hosein ali sa’adi, “bitcoin and the financial-legal nature of digital money” (2018) 15:30 journal of iran’s economic essays. nafis, alam, lokesh gupta & zameni abdolhossein, “cryptocurrency and islamic finance” in fintech and islamic finance (palgrave macmillan, 2019). nurhisam, luqman, “bitcoin: islamic law perspective” (2017) 5:2 qudus international journal of islamic studies. ortolani, pietro, “self-enforcing online dispute resolution: lessons from bitcoin” (2016) 36:3 oxford journal of legal studies. peruginelli, ginevra & sebastiano faro, “research quality evaluation: the case of legal studies” in the evaluation of research in social sciences and humanities (2018). ponsford, matthew p, “a comparative analysis of bitcoin and other decentralized virtual currencies: legal regulation in the people’s republic of china, canada, and the united states” (2015) 9 hkj legal stud. roshan, mohamad, mostafa mozafari & hanieh mirzayi, “jurisprudential and law investigation into bitcoins” (2019) 22:87 journal of law research. siswantoro, dodik, rangga handika & aria f mita, “the requirements of cryptocurrency for money, an islamic view” (2020) 6:1 heliyon. 196 | legal analysis of the nature of cyber currency in iran: a comparison to eu law soleymanipour, mohammad mahdi, hamed sultaninejad & pourmotahar mahdi, “jurisprudential investigation into virtual money” (2017) 6:2 islamic finance research bi-quarterly journal. teddy, kusuma, “cryptocurrency for commodity futures trade in indonesia: perspective of islamic law” (2020) 37:1 journal of islamic banking & finance. trautman, lawrence j, “bitcoin, virtual currencies, and the struggle of law and regulation to keep the peace” (2018) 102 marq l rev. truby, jon, “decarbonizing bitcoin: law and policy choices for reducing the energy consumption of blockchain technologies and digital currencies” (2018) 44 energy research & social science. van vliet, ben, “an alternative model of metcalfe’s law for valuing bitcoin” (2018) 165 economics letters. wheatley, spencer et al, “are bitcoin bubbles predictable? combining a generalized metcalfe’s law and the log-periodic power law singularity model” (2019) 6:6 royal society open science. windiastuti, filka c & fauzul h n athief, “inacoin cryptocurrency analysis: an islamic law perspective” (2019) 2:2 journal of islamic economic laws. yang, ruoke, “when is bitcoin a security under us securities law” (2013) 18 j tech l & pol’y. zharova, anna & ian lloyd, “an examination of the experience of cryptocurrency use in russia. in search of better practice” (2018) 34:6 computer law & security review 1300–1313. indonesian journal of law and society (2023) 4:1 52-94 issn 2722-4074 | doi: 10.19184/ijls.v4i1.38415 published by the university of jember, indonesia available online date month 2023 legislative policy and accountability for pollution crimes by ship operations in indonesian waters muchamad huzaeni* kesyahbandaran and port authority class iv probolinggo, indonesia achmad hasan basri state islamic university of kiai haji achmad siddiq jember, indonesia abstract: every nation in the world is concerned about the sea as a means of international transportation. indonesia is a maritime nation with a large sea. indonesia is at a critical geopolitical position. due to indonesia's location along a strategic and viable maritime route, numerous ships go through indonesia's shipping channels. the objective of this paper is to examine the legislative policies regulating criminal acts of pollution in indonesian waters based on the environmental law and the shipping law as well as criminal responsibility for perpetrators of pollution in indonesian waters. the study used normative juridical methods with law enforcement approaches by examining all regulations that are relevant to the legal problem being studied. next use the case approach, namely by examining several incidents for reference to legal issues, as well as comparisons by making comparisons between two regulations. obtained through news from the media and court decisions relevant to the matter to be studied. the results of the research are legislative policy on pollution in waters regulated in the environmental law with the shipping law, there has been a disharmony of norms related to criminal acts of pollution in waters carried out by ship operations, different provisions for criminal penalties or fines so that in its application it becomes multi-interpreted and will have an impact on 53 | indonesian journal of law and society uncertainty. according to the principle of systematische specialiteit between the environmental law and the shipping law, those who operate ships that cause pollution of the waters are subject to criminal liability under the shipping law. the benchmark is the regulation's purview, which includes shipping activities in the waters, individual subjects, such as each ship, and prohibited objects, such as the disposal of hazardous waste. keywords: legislative policies, criminal acts of pollution in the waters, criminal acts liability. copyright © 2020 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 01/02/2023 reviewed: 17/02/2023 accepted: 16/03/2023 i. introduction the sea is a means of global transportation which is a concern for every country in the world. indonesia is a maritime country that has a expansive sea. indonesia's geo-political position has a strategic position. indonesia's existence a strategic and potential shipping lane that makes indonesia's shipping lanes pass by many ships. in addition, indonesia's maritime potential is marine resources consisting of various kinds of marine ecosystems, coral reefs, fisheries, and marine biota. in terms of natural resources and environmental services, indonesia's sea, which is 2.5 times larger than how to cite: huzaeni, muchamad & achmad hasan basri, “legislative policy and accountability for pollution crimes by ship operations in indonesian waters” (2023) 4:1 indonesian journal of law and society 52-94, online: <https://doi.org/10.19184/ijls.v4i1. 38415>. 54 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters its land area, has a lot of potentials to improve local, regional, and national economic welfare.1 besides having a beneficial effect on the development of the country's economy, the density of shipping lanes by ships crossing indonesian waters also has a bad effect, namely pollution in the waters. pollution will cause a decrease in water quality in such a way that it will disrupt the metabolic and physiological functions of marine species.2 therefore it will result in the death of marine biodiversity which will eventually reduce the population.3 pollution is defined as the insertion of certain substances, energy, creatures, or parts into the environment, as well as changes in the composition of the environment so that the quality of the environment is not optimal which results in the environment being damaged or unable to operate as it should.4 pollution of water, air, and soil are three types of pollution. water pollution is caused by human activities, and industry discharges waste through pipes or leaks from storage tank pipes. contaminated water can occur, when seawater seeps and is contaminated with chemicals, production process residue, and excavated waste.5 according to j. barros and j.m. johnson, environmental damage and pollution are closely related to human development activities, which include waste, and critical 1 andrizal, john dirk pasalbessy & arman anwar, “aspek interoperabilitas antara lantamal ix dengan kamla zona bahari timur dalam penegakan hukum di laut maluku ditinjau dari perspektif harmonisasi hukum confrences on the standardization of geographical names ( uncsgn ) dan united nations group of expert” (2021) 1:2 pamali pattimura magister law rev 121–146. 2 asep suherman, “liability under the shipping law” (2020) 5:1 bina huk lingkung 133–152. 3 ni putu suci meinarni, “upaya hukum dalam penyelesaian sengketa pencemaran lingkungan laut dalam kasus tumpahan minyak montara di laut timor” (2016) 5:4 j magister huk udayana 833–870. 4 joko subagyo, hukum lingkungan masalah dan penanggulangannya (jakarta: rineka cipta, 2005). 5 h r mulyanto, ilmu lingkungan (yogyakarta: gramata publising, 2007). 55 | indonesian journal of law and society waste substances such as heavy metals, radioactive substances, oil, and others.6 regulations regarding pollution at sea are instructed in law number 32 of 2009 regarding environmental protection and management, here in after referred to as the environmental law, and law number 17 of 2008 regarding shipping, here in after abbreviated as the shipping law. pollution caused by waste disposed of by ship operations is increasingly threatening the condition of indonesian waters. pollution is not only when a ship accident occurs, but also the intentional factor,7 namely the activities of operating ships and tankers directly contribute to pollution in the waters, certain ballast water that is inside the ship, must be disposed of when loading, one of the actions they often take is dumping waste in a certain dose, concentration, time and location into the sea.8 in addition, pollution of the marine environment that also often occurs is oil spills, the accident namely oil spills resulting from tankers. pollution in the sea that is carried out continuously will disturb and damage the ecosystem along with the diversity of biological resources and marine biota in it, and it can be dangerous for everyone.9 dissolved oil components allow direct poisoning of marine animals, while components of oil that are inserted will cover the main sedimentation of the water, disrupting the survival of the biological 6 subagyo, supra note 4. 7 mujiono & fanny tanuwijaya, “formulasi korporasi sebagai subjek hukum pidana dalam regulasi lingkungan hidup di indonesia” (2019) 6:1 lentera huk 55– 70. 8 suyartono, “lebih jauh tentang tumpahan minyak di laut,” kementeri energi dan sumber daya miner direktorat jenderal miny dan gas bumi (2014) 1, daring: <https://migas.esdm.go.id/post/read/lebih-jauh-tentang-tumpahan-minyak-di-laut>. 9 ni kadek eny wulandari putri & kadek agus sudiarawan, “karakteristik pertanggungjawaban korporasi pada tindak pidana perusakan lingkungan hidup di indonesia” (2020) 8:11 kertha semaya j ilmu huk 1717–1728. 56 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters environment of the water at the bottom.10 environmental pollution in the sea is an event that can cause losses to various sectors such as tourism, the fishing sector, as well as the ecosystem for the living creatures in it.11 in 2009, indonesian goverment issued the environmental law, which is integral in nature and has regulated sanctions against criminal acts of pollution both on land, waters, and also in the air as an update from previous regulations related to environmental management. the environment is the continuity of a place that includes all objects, forces, conditions, and living things, as well as humans and their actions, which have an impact on nature, survival, the prosperity of humans and other living things, by article 1 (1) of the environmental law. next, what is meant by environmental depravity is a direct or indirect transition to the character, chemistry, or biology of the environment which exceeds the requirements for environmental depravity by article 1 point 17 of the environmental law. pollution from the operation of ships is defined as damage to the sea caused by spills or release of liquid hazardous materials, waste products, or oil without permission from certain competent authorities, by article 1 point 1, minister of transportation regulation number 29 of 2014 regarding the prevention of maritime environmental pollution (abbreviated as pm 29/2014), this regulation is the implementer of environmental law at the ministerial level whose position is under environmental law. the criminal penalty provisions of the environmental law are contained in article 104 where the penalty is 3 years and a fine of up to three billion rupiahs if the activity is carried 10 bl hentri widodo & eni tri wahyuni, “manajemen penanggulangan tumpahan minyak di laut akibat dari pengoperasian kapal” (2020) 22:1 maj ilm gema marit 60–66. 11 komar kantaatmadja, ganti rugi internasional pencemaran minyak di laut (bandung: penerbit alumni, 1981). 57 | indonesian journal of law and society out by someone who deliberately disposes of certain waste without a license, to environmental media. pollution carried out by the operation of ships will cause fractural damage to the shipping law, but on the other hand, there are also rules governing environmental pollution, namely the environmental law, where there are differences between the two provisions in terms of the criminal aspect, this will have an impact on its application. pollution in the waters will not only disrupt sea transportation traffic but also disrupt the ecosystem of marine biota which supports the livelihoods of most indonesian people. provisions in the shipping law, in which acts of pollution at sea carried out by ship operations are lighter in terms of criminal provisions and fines. differences in criminal provisions in the environmental law and the shipping law, give the impression that pollution in the sea carried out by ship operations is relatively mild, even though the sea is a very important ecosystem as well as its transportation routes. it is hoped that the policies of the executive branch and the legislature in compiling a written rule will be in line with this to minimize the occurrence of various normative conflicts between these rules. the importance of policies carried out by legislators, especially regarding pollution in waters carried out by ship operations as an effort to form legal certainty in being accountable. for this reason, authors intend to conduct a study based on several cases of marine pollution carried out by ships, including the release of ballast water to release waste into the sea without operating the engine. oil water separator as an oil filter so that the disposal of the wastewater mixes with oil which is classified as b3 waste with a critical level, this incident has been decided by the batam district court with number: 234/pid.sus/2021/pn. btm, in 2021. recently there was an oil spill from a ship carrying masbos diaz fuel oil in the area of south hagu 58 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters village, lhokseumawe, aceh, in 2022.12 furthermore, in 2021, the mt wanda ship sank in johor, causing an oil spill in the nongsa area of batam, riau province.13 the sinking of a suction ship production owned by pt timah, the riau work location, in 2019.14 in previous research by sumaniar a., “maximizing criminal penalties for violators of environmental quality standards from waste”, the author focuses on the implementation of criminal penalties on the application of norms for violating waste quality standards that have not been carried out optimally, and different system that should be done.15 another research by elly k. p., "the impact of flags on tanker oil pollution incidents", focuses on the responsibility for oil spilled at sea due to tanker accidents and the fair value of compensation.16 novelty in the research, the authors focus on legislative policies regulating criminal acts of pollution in indonesian waters based on the environmental law and the shipping law and criminal responsibility for pollution perpetrators carried out by operating ships in indonesian waters. the aim is to study and analyze legislative policies and forms of accountability for perpetrators of 12 rahmad, “in picture tumpahan solar cemari pesisir desa hagu selatan lhokseumawe,” (2022), daring: republikacoid <https://www.republika.co.id/berita/rauu4k314/tumpahan-solar-cemari-pesisirdesa-hagu-selatan-lhokseumawe>. 13 ajang nurdin, “perairan batam tercemar limbah minyak dari kapal tenggelam,” (2021), daring: liputan6 <https://www.liputan6.com/regional/read/4449203/perairan-batam-tercemarlimbah-minyak-dari-kapal-tenggelam>. 14 hadi maulana, “pt timah gunakan oil booms atasi pencemaran laut akibat kip 10 karam,” (2019), daring: kompas.com <https://regional.kompas.com/read/2019/09/02/16185291/pt-timah-gunakanoil-booms-atasi-pencemaran-laut-akibat-kip-10-karam>. 15 sumaniar alam, “optimalisasi sanksi pidana terhadap pelanggaran baku mutu lingkungan dari limbah (criminal sanctions towards environmental quality violations from waste)” (2020) 20:1 j penelit huk jure 137–151. 16 elly kristiani purwendah, “pengaruh bendera kapal bagi kasus pencemaran minyak kapal tanker” (2020) 2:2 ganesha civ educ j 52–65. 59 | indonesian journal of law and society pollution carried out by ship operations in indonesian waters based on the environmental law and the shipping law. from previous research, there is no emphasis on efforts to harmonize regulations as a step in policy development so that rules related to environmental law in marine areas are conformity because of the same material content. ii. methods the type of research used is in the form of normative legal research by utilizing a statutory approach by examining all regulations that are relevant to the legal problem being studied. next use the case approach, namely by examining several incidents for reference to legal issues, as well as comparisons by making comparisons between two regulations. obtained through news from the media and court decisions relevant to the matter to be studied. there are two sources of legal material used by researchers, namely primary legal material sources that are binding such as the environmental law, the shipping law, and relevant regulations, and secondary sources, namely books, research results, legal expert opinions, and journals that discuss shipping law. method of tracing legal materials through the study of laws and regulations and literature studies. after obtaining the required data, then the legal material will be analyzed to obtain a conclusion which is an answer from the research. iii. legislative policy regulation of pollution criminal actions in indonesian waters 60 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters from top to bottom, policies are tools or instruments used to manage the population.17 policy, according to heinz e. and kenneth p., in leo a.'s book is a long-term choice characterized by the persistence and repetition of those who follow the rules.18 the policy is a set of guidelines for activities that lead and influence the behavior of those affected by decisions. policies are deliberately formed and mixed to shape the exact patterns of the target community based on the formulation of the policy.19 policy refers to planning, formulating, and implementing decisions, as well as evaluating the effect of these decisions on a large number of individuals who are the target audience of the policy. theoretically, the party making the decision has the authority to enforce it.20 while the legislature is a body that functions to formulate regulations. parliament is another name that emphasizes the representation of its members or the people's representative council, a word that emphasizes the components of discussing and negotiating.21 thus, the legislative policy is a decision in establishing and initiating something in statutory regulations. legislative policy is closely related to the study of national legal politics, with the conceptual arrangement of legislative decisions as an expression of affirmation of national legal politics.22 according to 17 sulistina et al, “the pathway of adopting omnibus law in indonesia’s legislation: challenges and opportunities in legal reform” (2022) 2:2 j kaji pembaharuan huk 155–182. 18 leo agustino, dasar-dasar kebijakan publik (bandung: alfabeta, 2016). 19 amri marzali, antropologi dan kebijakan publik (jakarta: kencana prenada media group, 2012). 20 miriam budiardjo, dasar dasar ilmu politik (jakarta: gramedia pustaka utama, 2008). 21 ibid. 22 adil lugianto & arief hidayat, “politik hukum dalam upaya pengendalian pencemaran bahan berbahaya dan beracun di wilayah laut yang berada dibawah kedaulatan indonesia” (2012) 7:2 law reform 43–74. 61 | indonesian journal of law and society abdul h. g. n., national legal politics can be considered as regulatory decisions that will be determined or realized on a national scale by the government, which include:23 1. consistent implementation of current legal provisions; 2. legal development is defined the as renewal of existing regulatory mechanisms, and those that have passed and the establishment of new norms to adapt to claims of societal change; 3. the functions of law enforcement or implementing agencies, as well as the instructions of their members, are affirmed; 4. increasing public legal awareness, in the opinion of certain policymakers. the following definition of legal politics is comprehensive because it covers all areas of legal politics, and includes plans for reform and the creation of norms that result in responsive attitudes to the norms of the current scale, as well as developing the expected dimensional norms.24 the formulation of laws must study the values that run in society.25 thus, carrying out the politics of criminal law requires the creation of criminal norms that are in line with current and future events and conditions. the criminal norm policy is basically how criminal norms can be mixed properly and leave a benchmark to the originators of rules to be implemented by the executive branch and supervised by the judiciary.26 legislative policy is a critical stage in the law-making 23 abdul hakim garuda nusantara, politik hukum indonesia (jakarta: yayasan lbhi, 1988). 24 ibid. 25 mia kusuma fitriana, “peranan politik hukum dalam pembentukan peraturan perundang-undangan di indonesia sebagai sarana mewujudkan tujuan negara ( laws and regulations in indonesia as the means of realizing the country ’ s goal )” (2015) 12:02 j legis indones 1–27. 26 m arif amrullah, tindak pidana pencucian uang (money laundering) (malang: bayumedia publishing, 2004). 62 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters process, as it ensures that the law keeps pace with societal rapid development, as well as advances in information and technical complexity. the direction of the application of state authorities by administrators is determined by politics, but decisions to develop legislative policies must be based on general understanding and the conscience of the people. the formulation of norms and sanctions in regulation needs to be evaluated, reviewed, and harmonized which abstracts the legal principles in it appropriately and is relatively easy to apply. law is built on principles that include the basic standards of judgment found in a legal system. paul scholten formulates, legal principles are ideas that exist within and underlie the legal system and are individually stated in laws, regulations, and assessments.27 in this regard, the essence of the principle as a rule of judgment must be realized in a positive legal system, this is simply because legal principles contain benchmark values and only provide indirect guidance or direction, and are not always normative in the sense of the rule of law. therefore, it can be difficult to determine when a legal theory loses its validity. these factors may include the ability of legislatures, governments, or law enforcement agencies to collectively enforce rules that are conditioned by values and serve as guidelines for human behavior.28 the shipping law will of course apply to pollution caused by the operation of ships, environmental contamination is, nevertheless, subject to laws, specifically the environmental law. the difference between the two provisions in terms of the sentencing aspect will affect the way it is applied. 27 paul scholten, de structuur der rechtswetenschap (struktur ilmu hukum), terjemah ed, arief sidharta, ed (bandung: alumni, 2013). 28 alam, supra note 15. 63 | indonesian journal of law and society the principal position is needed as a follow-up to legislative policies in evaluating, reviewing, and harmonizing regulations. lex superior derogate legi inferiori is a principle that explains a norm with a position at the level above it and replaces the legitimacy of the norm below it.29 identify whether one norm stands higher than another standard. of course, since state statutes usually have building rules, it's not a difficult thing to do, since laws are written in a hierarchical order.30 next is the principle lex specialis derogat legi general is the special norm that proceeds the general. a principle of norms known as "principle preference" indicates which law will be enforced if another law is related to or violated.31 there is also lex posterior derogate legi priori is the principle of asserting that the new rule supersedes the previous rule. this principle can only be used if the latest law has a position equal to or above the previous one in terms of legal standards.32 therefore, it is unlikely that the rules below conflict with the rules above. the use of this principle, as well as the application of the principle lex superior, is not difficult to determine because there is a clear criterion in setting the latest rules by paying attention to the time they are published chronologically. other principles of criminal law are “systematiche specialyteit” or systematic specificity, a criminal determination is considered special 29 jerzy stelmach & bartosz brożek, methods of legal reasoning (dordrecht: springer, 2006). 30 nurfaqih irfani, “asas lex superior, lex specialis, dan lex pesterior: pemaknaan, problematika, dan penggunaannya dalam penalaran dan argumentasi hukum” (2020) 16:3 j legis indones 305–325. 31 shinta agustina, “implementasi asas lex specialis derogat legi generali dalam sistem peradilan pidana” (2015) 44:4 masal huk 503–510. 32 irfani, supra note 30. 64 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters if it fulfills the requirements of the legislators whose aim is to enforce criminal provisions that have existed since they were made.33 a. pollution rules according to environmental law pollution in the marine environment comes from four different sources: ship operations, discharges, seabed activities, and landbased activities. ship pollution originates from the operation of ships such as releasing waste directly into the waters, from cargo carried by ships, and spills during loading and unloading at ports. dumping is a disposal by inserting waste in a certain grade, focus, tempo, and area with the condition that you obtain permission from the government at a certain location.34 other hazardous materials. pollution originating from seabed activities is a result of mining and utilization of oil and natural gas on the seabed. landbased pollution is mostly caused by the release of industrial waste into the sea and the use of fossil fuels, pesticides, and fertilizers that are used in abundance in agriculture to pollute groundwater.35 in order to achieve the purpose of controlling the environment by limiting and taking action against the perpetrators, an appropriate legal approach is needed in resolving the problem of pollution at sea carried out by the operation of ships, by making optimal use of the existence of the environmental law and the shipping law. pollution regulations in the environmental law, including: anyone is prohibited disposing of waste without permission so that it 33 triana dewi seroja & winda fitri, “implementasi dan implikasi asas kekhususan sistematis pada tindak pidana telekomunikasi” (2019) 4:2 j law policy transform 104–122. 34 bl hentri widodo & eni tri wahyuni, “manajemen penanggulangan tumpahan minyak di laut akibat dari pengoperasian kapal” (2020) 22:1 maj ilm gema marit 60–66. 35 lugianto & hidayat, supra note 22. 65 | indonesian journal of law and society pollutes the environment, illegally inserting b336 materials and releasing materials that have been genetically altered. all such activities must obtain prior permission from the competent agency. provisions for fines and imprisonment can be imposed on the offender. starting from 1-15 billion rupaih and 1-15 years in prison. environmental law tries to prevent and prosecute anyone involved in pollution crimes, because it can result in the quality of the environment that decreases and threatens the survival of other creatures. so it is necessary to protect environmental management seriously and consistently by all stakeholders interests, so that the environment is far from pollution that can damage the current and future environmental order. these provisions are contained in articles 98-109 of the environmental law. then what is meant by waste is the former of an activity and/or activity, it can be in the form of waste (b3)37. as for what is meant by dumping is a disposal by placing or inserting waste in certain levels, concentrations, tempos, and areas with the requirement to obtain permission from the government in certain locations according to the environmental law. b. regulation of pollution according to the shipping law. the safe maritime environment section is a shipping safety and security method that has an important role to play in preventing and controlling pollution that has an impact on the aquatic environment related to shipping operations, while maritime environmental regulations are under the shipping law, as follows: 36 the term “hazardous and toxic substances,” sometimes known as “b3,” refers to substances that have the potential to harm humans, other living things, or the environment due to their nature, concentration, or amount, either directly or indirectly., 2009. 37 ibid. 66 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters safety, security, and protection of the maritime environment are mandatory requirements for every ship and port operation. the government is tasked with monitoring and evaluating the safety of the maritime environment ranging from restrictions to pollution control from shipping and port activities including waste disposal in water. furthermore, each crew member is responsible for controlling the pollution caused by the ship. therefore, ships of certain types or scales must be accompanied by equipment, materials and control patterns that have received permission from the government to avoid oil pollution sourced from ships. regarding the disposal of waste, ballast water, sewage, debris, hazardous chemicals, toxins and exhaust gases that exceed the threshold for water are prohibited from being disposed of by all ships, unless the distance, release size, and quality of release are based on predetermined conditions. if there is pollution caused by the ship or its activities is the responsibility of the master or executor of other units in the waters, for that it is mandatory to insure it, and must immediately inform the authorized unit for follow-up. for ships carrying waste (b3)38 must meet the requirements determined by the government by having operational standards and emergency response procedures based on applicable legal provisions. port authorities are responsible for providing waste collection facilities to collect waste sourced from ships in ports. waste management is carried out based on applicable rules. meanwhile, the criminal provisions related to pollution in indonesian waters according to the shipping law are as follows: 38 ibid. 67 | indonesian journal of law and society anyone can be sentenced to 2-15 years imprisonment and fines ranging from 300,000-2.5 billion rupiah if they violate the criteria of safety, shipping security and protection of the marine environment. among them are marine pollution caused by ships, sewage disposal, ballast water, waste into the water so as to damage the environment. does not insure the pollution caused by the ship. this provision is contained in articles 303-329 of the shipping law. furthermore, what is meant by waste in the shipping law can also be in the form of residual oil, dirt and garbage including the skeleton of a ship that sank in the waters. comparative between shipping law and environmental law related to the disparity of provisions: table 1 environment law shipping law anyone is prohibited from dumping waste into the environment without permission from the competent authority (article 60). anyone is prohibited from disposing of ballast water, garbage dumped into the sea by boat, and other forms of marine pollution that damage the environment without permission (article 229). a fine of 3 billion rupiah and imprisonment can be imposed on the perpetrator for 3 years (article 104). a fine of 300 thousand rupiah and imprisonment can be imposed on the perpetrator for 2 years (article 325). 68 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters dramatically, there are two regulatory provisions related to the criminal act of pollution in indonesian waters, there are also differences regarding the criminal threat where article 104 of the environmental law is a criminal offense for a period of 3 years and a fine of up to 3 billion rupiahs. meanwhile, in article 325 of the shipping law, a criminal offense for a length of 2 years and a maximum fine of three hundred million rupiahs. the case that occurred in mt. freya which has been decided by the batam district court. in his indictment, the public prosecutor only charged the defendant with article 104 in conjunction with article 60 of the environmental law regarding the chapter on pollution in waters. of course the shipping law was overridden by this decision, this will have an impact on the implementation related to pollution carried out by ship operations in indonesian shipping orders because there are two regulations related to pollution in indonesian seas carried out by ship operations. when prosecutors apply environmental law rather than shipping law, the perpetrator will be more burdened because the sentence is longer. the philosophical foundation in the environmental law states that organisms are a gift from god for the nation and must be cared for and maintained for their ability to continue to provide a source and support of life for all of us, as well as for the other living environment. this is none other than for the sustainability and optimization of the quality of life together. in biotic terms, living things and other abiotic objects are in a bond that is interdependent and interconnected. as a result, all living things and other things must attain equal dignity. because humans and the environment have a mutually beneficial relationship that must always be maintained and cared for to remain harmonious, as well as balanced with the process of maintaining organisms and the social environment, it is necessary to have national 69 | indonesian journal of law and society policy arrangements that regulate environmental control that is integrated between growth and population dynamics. as well spatial planning that adheres to the principles, is the sociological foundation. juridically, the norms for the environment, in addition to referring to national norms, also study the principles of norms that apply internationally regarding the environment. considering the legal policies of the shipping law, one of its scopes is the safeguarding of the maritime area to create safe and secure conditions for indonesian shipping, which must continue to improve its capabilities and role, just in case to create an effective system and an efficient transportation system through prevention efforts. against pollution of the marine environment caused by oil and other hazardous materials caused by shipping operations. in order to examine the provisions on pollution in the sea instructed by these two provisions, it is important to know the hierarchy of laws and regulations and their principles. between the environmental law and the shipping law, they have an equal position, namely as a law. this knowledge is important for understanding the principle lex superior derogat legi inferiori. based on this principle, if there is a contradiction between legal rules that are hierarchically at the level above and below, then the rule below must be set aside. besides that, you need to understand the principle lex specialis derogate legi generali. this principle is based on two hierarchically equivalent norms, but the fields and substance of the material between the two are different, where there are specificities from the other. if one looks at the provisions between the environmental law and the shipping law, the scope of the contents of the environmental law starts from the conception, use, control, maintenance, monitoring, and application of the law. within the scope of the content material there 70 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters is also the application of administrative, civil to criminal law as a last resort, which has the aim of controlling the environment in: 1. towards harmony and harmony between humans and the environment; 2. ensuring the importance for the successors of posterity in the future; 3. controlling the wise use of natural resources; 4. defending the nation zone from environmental pollution or destruction; 5. caring for the continuity of the role of the environment; 6. realizing development that is consistent with environmental insight. while the scope of the shipping law includes the: 1. all sea transportation activities, starting from ports, safe and secure shipping and guarding the indonesian maritime area; 2. all foreign ships crossing the indonesian territorial sea; 3. all indonesian ships that are outside the indonesian territorial sea. in the general elucidation of the shipping law, it is stated that various requirements related to shipping also include rules regarding environmental management before amendments to the environmental law, if related to shipping, especially security and safety factors, are subject to the shipping law. the condition of achieving safety and security criteria related to transportation at sea, ports, and guarding the sea area is known as a factor of safe and secure shipping. the explanation above shows that the shipping law applies specifically when it is related to the factor of safe and secure sailing in which there is guarding the maritime area. this means that if the pollution carried out by ship operations results in disruption of 71 | indonesian journal of law and society shipping traffic, then this act is part of the shipping law as a reference for law enforcement. the next principle is lex posterior derogate legi priori, which means the most recent rule overrides the old one. the existence of this principle is understandable considering that the most recent regulations reflect more current needs and conditions. this can be seen in the birth of the shipping law which was effective on may 7, 2008, with the environmental law which was promulgated on october 3, 2009. if viewed based on time, the pplh law was born after the shipping law, which means that the environmental law is more recent. explanation of the general provisions of the shipping law which also takes into account environmental interests where in its considerations the shipping law refers to the rules related to previous environmental management which have now been amended by the environmental law, where criminal provisions in the environmental law specifically related to pollution at sea can be used as a reference by the shipping law, aligned with the academic text in the environmental law. where the presence of the environmental law is a harmonization concept framework that is a reference for every action that has an impact on the environment. thus, all rules governing environmental activities such as maritime environmental protection in the shipping law need to be formulated and implemented in harmony with the environmental law, especially those related to the criminal provisions of article 60 in conjunction with 104 of the environmental law with articles 229 in conjunction with 325 of the shipping law. this is also followed by the principle of certainty of intent, concept, usability, and effectiveness so that it can inherit legal certainty and benefits as the principle of forming rules based on pancasila. the formulation of criminal norms and sanctions is very important to 72 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters study and review, so that they do not have an impact on the application of juridical, sociological, ecological, and philosophical terms for judges and other law enforcers in realizing their applicable policies in real terms, as an example in the decision of the batam district court. in addition, in 2020 the government has taken the initiative to issue regulations related to job creation, in which one of the clusters in the regulation also revises shipping, but related to pollution in waters carried out by operating ships has not been harmonized so it is unclear about the legal substance and criminal provisions for pollution in special waters caused by ships or due to ship operations. as well as future harmonization plans related to the latest criminal code which compiles the contents of norms and criminal provisions for pollution in waters in chapter 31 related to shipping crimes and part eight related to environmental crimes. pollution by the operation of ships can be subject to criminal provisions based on the shipping law because the explanation states that as long as it is related to shipping safety and security, it is subject to the shipping law. it can be concluded that indirectly the shipping law becomes a regulation that applies specifically to anything caused by ships, including pollution that falls within the scope of maritime environmental protection. the need for harmonious formulation and implementation related to criminal provisions due to pollution in waters carried out by ships operating under article 229 jo 325 of the shipping law and the environmental law, namely article 60 jo 104. considering that pollution in waters has a more widespread impact on marine biota ecosystems which are the backbone of the majority of indonesian people's livelihood. criminal norm policy in essence is how these norms can be properly conceptualized and become the basis for drafting rules to be implemented by the executive branch and supervised by the judiciary. it is necessary to explain in detail 73 | indonesian journal of law and society about pollution in indonesian waters starting from the scope, consequences, elements of the act, and punishment for the perpetrators, to provide legal certainty, and not cause multiple interpretations in its application. as was the case with mt. freya which has been decided by the batam district court. in his indictment, the public prosecutor only charged the defendant with article 104 in conjunction with article 60 of the environmental law regarding pollution in waters. whereas in the provisions of the shipping law article 325 jo 229, similar matters have also been regulated which could be an alternative to the public prosecutor's indictment. therefore, it is necessary to clarify which provisions are used when pollution is carried out by ship operations in indonesian waters. to determine which specific rules apply, the principle of systematic specificity is applied. this principle is the development of the principle of “special law/lex specialist”. if crimes can be prosecuted under two or more statutes, this approach is used. which rule is more systematic, in terms of the scope of the act, who is the subject of the violation, and what is the object of the violation, must be carefully evaluated. according to the formulation of the environmental law regarding pollution, article 60 jo 104 of the pplh law. first, the scope of article 4 of the environmental law is environmental security and control in general. second, based on the subject who commits a violation anyone can be held responsible, from these provisions it can be said that the subjects in the environmental law are not limited. third, so objects are prohibited from these provisions, namely the disposal of hazardous waste or materials into the media without being equipped with certain requirements. the formulation in article 229 of the shipping law. the release of waste, ballast water, sewage, debris, hazardous chemicals, poisons, 74 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters and exhaust gases that exceed the threshold for water is prohibited from being disposed of by all ships, unless the distance, size of the release, and quality of release are based on conditions that have been set. then the criminal provisions for anyone who throws away anything that is not allowed according to the rules are punished with a maximum of 2 years and a fine of not more than three hundred million rupiahs. first, the scope of article 4 of the shipping law covers all activities in the waters, starting from transportation, ports, safe, and secure shipping, and the security of the maritime area in indonesia. thus the scope of the enactment of the shipping law does not apply freely, but only relates to shipping activities in the waters. second, based on the subject that commits the violation is every ship, from this provision it can be said that the subject in the shipping law is a legal subject representing a ship or someone responsible for the ship. in other words, someone who is not related to ships, cannot become a legal subject of the formulation of article 229 of the shipping law. third, some are prohibited from these provisions, namely the disposal of hazardous waste or materials into the waters without being equipped with certain requirements. based on the object of the prohibition in the shipping law, it has similarities with the environmental law. based on the “systematische specialiteit” principle of the two laws, namely between the environmental law and the shipping law,39 if the benchmark is the scope of the application of these rules, namely shipping activities in waters, personal subjects, namely each ship, and prohibited objects are the disposal of hazardous waste, then the shipping law should be implemented, even though there is a environmental law which has an element of the offense which can also include it. the “systematische specialiteit” principle determines 39 seroja & fitri, supra note 33. 75 | indonesian journal of law and society the environmental law and the shipping law which apply to pollution in waters carried out by ship operations, both crew members and anyone who originates from ship operations by the scope, personal subject, and object of the delict. legislative policies regulating criminal acts need renewal,40 review in determining and formulating laws including criminal acts of pollution in indonesian waters committed by ship operations. polluter by the operation of ships can be subject to criminal provisions based on the shipping law even though there is a environmental law which has an element of delict which can also include it. legislative policies on pollution in waters regulated in the environmental law and the shipping law have resulted in disharmony of norms related to criminal acts of pollution in waters carried out by ship operations, where acts of pollution are regulated in two different provisions, namely the environmental law and the shipping law, with provisions for penalties different criminal penalties or fines, so that in its application it becomes multiple interpretations and will have an impact on uncertainty. iv. criminal liability for pollution in indonesian waters the imposition of a sentence must carry out the condition that a person's actions can be asked to bear the responsibility for his actions. it is important to have the condition that a person can take responsibility based on the criminal liability formula. the notion of bearing criminal responsibility is not only related to legal issues, but also the principles, morals, and decency that are chosen by groups of people, and society, to achieve criminal responsibility through 40 fifink praiseda alviolita & barda nawawi arief, “kebijakan formulasi tentang perumusan tindak pidana pencemaran nama baik dalam pembaharuan hukum pidana di indonesia” (2019) 15:1 law reform 130–148. 76 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters justice.41 roeslan saleh defines it as a continuation of the rational consequences contained in criminal offenses and subjectively creates standards for being punished for these crimes.42 several definitions of criminal responsibility can be found in the indonesian criminal law literature, including in the quote hilaman hadikusuma, simons claims the ability to assume responsibility can be seen as a psychological condition that ensures the implementation of a criminal step, from a broader public and individual perspective, and accountability it can be carried by someone.43 criminal responsibility refers to the process of assessing whether a suspect or defendant is to blame for the crimes that have occurred.44 a person will have the nature of criminal responsibility if he commits an act that violates the norm, but he can abort his responsible character if there are factors within him that cause him to miscarry his capacity to assume responsibility. the basis of a criminal act, according to chairul huda, is the concept of legality, while the maker can be punished for his mistakes.45 in addition, in the common law system, criminal responsibility is based on a state of mind known as men's rea, which means that criminal responsibility depends on a state of mind known as a bad mind. the term "guilt thinking" refers to a pang of subjective guilt for which a person is found guilty because the maker was determined to have the wrong thought and therefore must be held accountable. the 41 hanafi & mahrus, sistem pertanggung jawaban pidana (jakarta: rajawali pers, 2015). 42 roeslan saleh, pikiran-pikiran tentang pertanggung jawaban pidana (jakarta: ghalia indonesia, 1982). 43 hilaman hadikusma, bahasa hukum indonesia (bandung: alumni, 1992). 44 moh khasan, “prinsip-prinsip keadilan hukum dalam asas legalitas hukum pidana islam” (2017) 6:1 rechts vinding media pembin huk nas 21–36. 45 chairul huda, dari tiada pidana tanpa kesalahan menuju kepada tiada pertanggungjawaban pidana tanpa kesalahan (jakarta: prenada media, 2006). 77 | indonesian journal of law and society violator will not be punished even though he has committed a criminal offense by justifying or pardoning reasons. accountability is demanded based on the principles of criminal norms for someone who violates criminal rules.46 the legal principle of “nullum delictum nulla poena sine praevia lege poenali” is termed the principle of legality which is the basis that no act can be punished without fault.47 the groundwork is about holding someone accountable for their actions. that is, a person can only be held accountable if the crime has been designed in advance.48 no one can be punished or prosecuted if the regulation arises after the unlawful act has occurred. it is forbidden to use figurative language to determine the existence of a crime, and criminal law norms do not allow it to apply retroactively. in this example, if it is determined that a person has an element of criminal wrongdoing, many conditions must be met to establish that person can be held liable. the elements are: 1. there is a criminal offense; 2. there are errors whether intentional or due to negligence; 3. some makers can be held accountable; 4. and there is no reason for criminal elimination. criminal law exists to provide the value of justice to all groups of people. the law is also a supervisor for action because people who carry out evil actions are educated and given punishment based on the criminal acts they have committed. this is so that someone who 46 lidya suryani widayati, “perluasan asas legalitas dalam ruu kuhp” (2011) 2:2 negara huk 307–328. 47 khasan, supra note 44. 48 rio admiral parikesit, “penerapan asas legalitas (legaliteit beginsel/wetmatigheid van bestuur) dalam kebijakan sentralisasi pengharmonisasian peraturan perundangundangan” (2021) 18:4 legis indones 450–459. 78 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters commits a crime can experience the consequences of his actions and not repeat them. sanctions embedded in the rules will leave pressure on other groups not to commit acts against the law. pollution of the environment is an act that according to the environmental law. pollution in water is one type of environmental pollution because water is a component of life in the environment. in the shipping law, there is no specific explanation related to the definition of pollution, but pollution is included in the scope of maritime protection article 1 point 57, which in essence is a step to inhibit and limit environmental pollution in waters originating from activities related to shipping. administrative and civil penalties, as well as options for solving environmental problems, are not yet effective,49 then the elucidation of the environmental law stipulates that criminal law should be used, if: 1. the perpetrator's level of negligence is high; 2. impact of significant actions; and 3. the activities surely occur to provoke public concern. against such actions in criminal provisions according to the environmental law contains a principle formulation “ultimum remedium” namely the sentencing provisions make the ultimate effort in the environmental law. according to soedarto, legal protection functions as a tool for social control, and the role of punishment can be interpreted as an “ultimum remedium” which indicates that criminal norms can only be enforced if other measures 49 muhammad ridwansyah, “pengaturan tindak pidana dalam undang-undang nomor 32 tahun 2009 tentang perlindungan dan pengelolaanlingkungan hidup (tinjauan fiqh albi’ah)” (2017) 6:2 j huk dan peradil 173–188. 79 | indonesian journal of law and society fail.50 hulsman said that regarding everything that is outside the law (even those subject to criminal law sanctions) as much as possible it is resolved outside the criminal law.51 the use of law must be limited, if there is another option do not use the criminal justice system. based on that opinion, it is clear that the issue of the concept of subsidiarity is solely intended to be more functional and to make use of methods outside of criminal law. this influence arises not only when punishment is imposed on certain criminal acts, but also because it is determined or stated in laws and regulations. this is the hallmark of this criminal consequence acting as a deterrent by intentionally causing misery to uphold legal standards. when compared with the existing penalties in other areas of law, criminal sanctions are more severe. the purpose of this topic is to protect legal interests from action on illegal matters. criminal provisions casually contained in the shipping law, there is no relation to the principle of ultimum remedium. in his explanation as long as it relates to shipping safety and security, all provisions in the shipping law apply to legal subjects. thus all legal remedies contained in shipping rules apply as stated. meanwhile, regarding dumping referred to in the environmental law and its derivative regulations, they include: a. regulation of the minister of environment and forestry number p.12/menlhk/setjen/kum.1/4/2018, regarding the terms and methods for dumping waste into the sea, article 2 paragraph (1) is prohibited dumping waste into the sea without permission for anyone who produces waste. paragraph (2), b3 and non-b3 waste 50 soedarto, hukum pidana i (semarang: badan penyediaan bahan-bahan kuliah fh undip, 1998). 51 saleh, supra note 42. 80 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters are examples of waste that can be disposed of into the sea. paragraph (3), b3 waste originates from activities: 1. tailings in the form of mineral mining; 2. drill cuttings that use drill mud made from synthetic materials related to the exploration or exploitation of oil and natural gas at sea. paragraph (4), non-b3 waste originating from exploration or exploitation activities in letter b above is in the form of: 1. the use of drilling mud with water as the main ingredient in the form of drilling dust; 2. the use of drilling mud with the main ingredient of water in the form of waste drilling mud. b. article 3 of regulation of the minister of environment and forestry p.12/2018, anyone who releases waste into the sea must fulfill the following conditions: 1. before release; 2. region of release; 3. release method; and 4. environmental monitoring. c. article 9 regulation of the minister of environment and forestry p.12/2018, disposal of waste into the sea fulfills the following requirements: 1. reduction of poison content; 2. waste type; 3. waste quantity; 4. waste discharge intervals from sensitive sites; 5. release tempo; 6. discharge debt; 7. release method; 81 | indonesian journal of law and society 8. steps and types of mining activities, to waste originating from mineral mining in the form of tailings. d. article 19 paragraph (1) regulation of the minister of environment and forestry p.12/2018, the minister must issue a permit to anyone who dumps (dumping) waste that meets the requirements. a. pollution originating from ship operations according to article 3, pp 21/2010, can be in the form of: 1. oil; 2. liquid components containing poisons; 3. the form of packaging of the precarious components being transported; 4. garbage disposal; 5. ballast water; 6. hazardous products and materials for the ship's environment. while the provisions related to the release of waste caused by shipping operations that may not be carried out without a permit in article 5 pp 21/2010, are: 1. residual dirty oil; 2. rubbish; 3. human waste; 4. ballast water; 5. dangerous and toxic components of chemicals; 6. components that can damage the ozone. based on pm 29/2014, pollution from the operation of ships and products and hazardous materials contained on ships include: 1. ship tank washing activities; 2. transportation of hazardous and poisonous waste by ship; 3. disposal of waste in the waters; 82 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters 4. oil pollution coming from ships 5. pollution of liquid components containing toxins from ships 6. pollution forms the packaging of precarious components transported by ships 7. pollution by ships such as sewage, garbage dumps, air, and engine exhaust; 8. pollution caused by the spillage of cargo and products from ships; 9. barnacle control; 10. management of ballast water on board. shipping rules for every sailing ship must be followed by the shipping law and its derivative regulations, including: a. article 80 paragraph (3) pm 29/2014, requires that hazardous and toxic waste (b3 waste) must be equipped with at least: 1. format of several types of cargo (manifest) carried by ship; 2. stowage (labeling, labeling positioning); 3. rule-based loading technique; 4. pollution control equipment and safety equipment. 5. pm 29/2014 article 48 paragraph (1), every ship carrying ballast water and traveling in the international maritime territory with a gross tonnage of 400 gt or more must follow the provisions of the ballast water management convention. paragraph (2) every ship transporting ballast water and sailing in the indonesian territorial waters with a capacity of 1500 m3 or more must comply with the water management rules set out in a ministerial regulation. paragraph (3) for ships that have fulfilled the requirements in paragraphs (2) and (3) a ballast water management certificate is issued by the director general; 83 | indonesian journal of law and society 6. pm 29/2014 article 49, provisions for ballast water regulation for ships article 48 paragraph (2): 1. with ballast water detail document and ballast water control scheme book. authorized officials approve the ballast water management plan, which is then submitted to syahbandar at the local port; 2. carry out ballast water control for ships with a water size of 1500 m3 and an interval of at least 25 miles from the nearest continent, exchange ballast water up to 95 percent of the ballast size; 3. when letter b has not been implemented, the return water release must be treated with a tool first; 4. ballast water is released by being treated. guided by the provisions in the release of ballast water, namely no more than 10 living organisms/m3 with a scale of 50 m or greater and a minimum of 10 organisms with a scale ranging from 10 m to a minimum of 50 m, in addition to these requirements must fulfill the stipulation of indicator release microbes, based on general guidelines for human health; 5. ships that have a ballast water size of 5000m3 or more must have control devices that meet the requirements in accordance with letter d; 6. the government must approve the ballast water management equipment system installed under letter c and letter e, guided by the criteria issued by the international maritime organization. based on the criminal provisions of the environmental law and the shipping law. a person deemed to have committed a criminal act of pollution in the waters is someone who intentionally or because of his negligence caused pollution in the waters based on the shipping law 84 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters and the environmental law. from the various descriptions above, the criteria for pollution caused by the operation of ships can be sourced, one of which is from the discharge of ballast water which could be contaminated with oil from the ship. included in pollution under the shipping law. because it is regulated in the shipping law and its derivative regulations regarding pollution originating from the operation of ships. whereas in the environmental law, the disposal or dumping of waste into the sea without approval is waste originating from b352 and non-b3 from mineral mining activities or exploration and exploitation of oil and natural gas in the sea, in the form of drill bits from drilling activities using drilling mud with components main synthesis. not caused by the operation of a ship in a voyage. thus specifically for pollution carried out by the operation of ships, the criminal provisions are based on article 325 in conjunction with 229 of the shipping law. this is because the act of pollution complies with what is regulated by the shipping law and its derivative regulations concerning the disposal of ballast water without a permit which results in pollution in the waters which is the scope of maritime environmental protection. the substance of the criminal provisions in the shipping law is consistent with its derivative regulations. it can also provide an overview for law enforcement in analyzing a fact based on the applicable legal provisions by its scope. there is an effort to harmonize criminal provisions related to pollution in waters carried out by ship operations with the environmental law. for actions that cannot be carried out according to the applicable legal rules that are public in nature, then if someone violates them, that person can be held responsible for the actions he has taken. in order 52 the term “hazardous and toxic substances,” sometimes known as “b3,” refers to substances that have the potential to harm humans, other living things, or the environment due to their nature, concentration, or amount, either directly or indirectly., supra note 36. 85 | indonesian journal of law and society to be charged with criminal responsibility, based on the principles of criminal law, such as having to fulfill the principle of legality which implies that there has not been an activity that is not permitted or threatened with punishment unless it has been stated first in a rule. some conditions must be met to determine that the person can be held criminally responsible. based on the results of the application of criminal provisions for pollution in waters carried out by ship operations. the author focuses on criminal provisions by article 325 of the shipping law. this decree does not stand alone, but there are previous acts of prohibition regulated in article 229 of the shipping law. article 1 number 27 pm 29/2014, the disposal of waste in question is the disposal of garbage or other objects originating from airplanes, ships, or other constructions at sea with the intention. this does not include waste or other goods arising from the normal operation of the ship or the positioning of goods for a purpose other than disposal. the act of dumping waste includes dumping, and placing, it in waters without a permit. looking at the formulation in the provisions of article 325 of the shipping law, it is a formal offense, namely an offense that prohibits certain activities from being carried out,53 in this case dumping waste into waters without a permit. therefore, committing the prohibited actions mentioned above is deemed to have completed the crime related to article 325 of the shipping law. next is to determine whether the criminal act can be held accountable by the person concerned. to prove whether the perpetrator has met the requirements in order to be able to bear his responsibility according to law, he has committed a criminal act as referred to in article 325 of the shipping law with the following factors: 53 paf lamintang, dasar-dasar hukum pidana (jakarta: sinar grafika, 2007). 86 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters 1. related to the existence of a criminal offense, it implies that an action has not been sanctioned if there are no rules that do not allow it.54 this has been formulated in article 325 in conjunction with 229 of the shipping law, regarding the prohibition of pollution in the waters carried out by ship operations; 2. mistakes, also referred to as normative errors, are defined as mistakes that occur when a person acts in violation of criminal provisions related to the ban on disposal of waste or ballast water, such as intentional mistakes and negligence; 3. to have a manufacturer who can be responsible, the skipper must meet the educational, training, talent, and skills qualifications, as well as his health in article 137 paragraph (6). in accordance with this stipulation, a person has a check regarding the personal condition of a skipper, which then determines whether the skipper can be held responsible or not; 4. there are reasons for criminal abolition, and reasons for justification and forgiveness are two types of justification that fall into the category of criminal abolition. the reason for justification is justification for criminal acts that are against the law. if the skipper dumping in indonesian waters has obtained a permit based on certain requirements that have been met, then the captain's actions cannot be categorized as a criminal act of pollution. next is the reason forgiveness leads to forgiveness even when someone has broken the law for the crime he has committed.55 if the soul of a skipper is in good health then this excuse cannot eliminate the criminal act of pollution. the elements of pollution in the waters formulated in article 325 of the shipping law must then be explained, namely: 54 moeljatno, asas-asas hukum pidana (jakarta: renika cipta, 2008). 55 hanafi & mahrus, supra note 41. 87 | indonesian journal of law and society 1. whoever means anyone who can become a legal subject by being able to bear responsibility for his actions; 2. doing, disposing of ballast water into the water by violating laws and regulations or without a permit, prohibiting certain activities, in this case disposing of waste into waters without a permit. next is related to who will bear the responsibility for the act of pollution in the waters by the operation of the ship. based on the shipping law article 1 number 41, the captain is a ship's personnel with the highest command of the ship and is given certain rights and obligations according to the law. article 227 of the shipping law, every crew member must limit and control the implementation of environmental pollution originating from the ship. the same thing is also confirmed by article 230 of the shipping law, every crew member, including the captain, is officially responsible for avoiding pollution caused by the operation of the ship. when pollution from a ship occurs, everyone, the crew, including the captain, automatically fails to fulfill their commitment to take preventive measures. in terms of criminal liability, it falls on the party that did it, as well as other parties that support or participate in pollution caused by the operation of ships, including shipping corporations. given the captain's position as the supreme commander of the ship, the captain has a very high possibility of being involved in pollution caused by the operation of the ship. the next possibility is the ship owner who can be held responsible for pollution originating from his ship based on article 231 of the shipping law. thus the criminal responsibility for the perpetrators of pollution in indonesian waters carried out by the operation of the ship based on the results of the author's research lies with who is most responsible for the operation of the ship. then based on the shipping law which specifically regulates related to all ship operations, including the 88 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters protection of the maritime environment. criminal responsibility for pollution in waters must first ensure the formulation of criminal provisions based on the scope of rules related to pollution in waters by ship operations. based on the shipping law, the skipper is the most relevant person to assume responsibility for pollution caused by the operation of his ship. this accountability must be consistent with the criminal provisions of article 325 in conjunction with 229 of the shipping law. it is necessary to pay attention to the difference between pollution originating from a ship and that which is not, because the consequences of applying the criminal provisions are also different. pollution originating from ships is contained in the provisions of articles 3 and 5 of pp 21/2010. not found in detail regulation of pollution originating from outside the ship. there are exceptions in the general provisions that pollution can originate from the release of waste in the waters, the exception is the release originating from the normal operation of the ship, article 1 point 7. pollution originating from outside the ship can be considered pollution from the operation of the ship outside the normal course, or caused by factors others that do not come from the ship. if the pollution that occurs is not intentional but the ship's crew is negligent in preventing it, the formulation that is considered appropriate according to the author is the formulation of article 324 in conjunction with 227 of the shipping law. criminal responsibility for perpetrators of pollution in waters can be applied based on the shipping law based on the systematische specialiteit principle of the two laws, namely between the environmental law and the shipping law, if the benchmark is the scope of the enactment of these rules, namely shipping activities in waters, personal subjects that is every ship, and the object that is 89 | indonesian journal of law and society prohibited is the disposal of hazardous waste, then the shipping law that should be applied is article 324 in conjunction with 227 or 325 in conjunction with 229 in the shipping law. v. conclusion legislative policies on pollution in waters regulated in the environmental law and the shipping law have resulted in disharmony of norms related to criminal acts of pollution in waters carried out by ship operations, where acts of pollution are regulated in two different provisions, namely the environmental law and the shipping law, with provisions for penalties different criminal penalties or fines, so that in its application it becomes multiple interpretations and will have an impact on uncertainty. according to the principle of systematische specialiteit between the environmental law and the shipping law, those who operate ships that cause pollution of the waters are subject to criminal liability under the shipping law. the benchmark is the regulation's purview, which includes shipping activities in the waters, individual subjects, such as each ship, and prohibited objects, such as the disposal of hazardous waste. acknowledgments none references the term “hazardous and toxic substances,” sometimes known as “b3,” refers to substances that have the potential to harm humans, other living things, or the environment due to their nature, concentration, or amount, either directly or indirectly., 2009. 90 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters agustino, leo, dasar-dasar kebijakan publik (bandung: alfabeta, 2016). amrullah, m arif, tindak pidana pencucian uang (money laundering) (malang: bayumedia publishing, 2004). budiardjo, miriam, dasar dasar ilmu politik (jakarta: gramedia pustaka utama, 2008). hadikusma, hilaman, bahasa hukum indonesia (bandung: alumni, 1992). hanafi & mahrus, sistem pertanggung jawaban pidana (jakarta: rajawali pers, 2015). huda, chairul, dari tiada pidana tanpa kesalahan menuju kepada tiada pertanggungjawaban pidana tanpa kesalahan (jakarta: prenada media, 2006). kantaatmadja, komar, ganti rugi internasional pencemaran minyak di laut (bandung: penerbit alumni, 1981). lamintang, paf, dasar-dasar hukum pidana (jakarta: sinar grafika, 2007). marzali, amri, antropologi dan kebijakan publik (jakarta: kencana prenada media group, 2012). moeljatno, asas-asas hukum pidana (jakarta: renika cipta, 2008). mulyanto, h r, ilmu lingkungan (yogyakarta: gramata publising, 2007). nusantara, abdul hakim garuda, politik hukum indonesia (jakarta: yayasan lbhi, 1988). 91 | indonesian journal of law and society saleh, roeslan, pikiran-pikiran tentang pertanggung jawaban pidana (jakarta: ghalia indonesia, 1982). scholten, paul, de structuur der rechtswetenschap (struktur ilmu hukum), terjemah ed, arief sidharta, ed (bandung: alumni, 2013). soedarto, hukum pidana i (semarang: badan penyediaan bahanbahan kuliah fh undip, 1998). stelmach, jerzy & bartosz brożek, methods of legal reasoning (dordrecht: springer, 2006). subagyo, joko, hukum lingkungan masalah dan penanggulangannya (jakarta: rineka cipta, 2005). agustina, shinta, “implementasi asas lex specialis derogat legi generali dalam sistem peradilan pidana” (2015) 44:4 masal huk 503–510. alam, sumaniar, “optimalisasi sanksi pidana terhadap pelanggaran baku mutu lingkungan dari limbah (criminal sanctions towards environmental quality violations from waste)” (2020) 20:1 j penelit huk jure 137–151. alviolita, fifink praiseda & barda nawawi arief, “kebijakan formulasi tentang perumusan tindak pidana pencemaran nama baik dalam pembaharuan hukum pidana di indonesia” (2019) 15:1 law reform 130–148. andrizal, john dirk pasalbessy & arman anwar, “aspek interoperabilitas antara lantamal ix dengan kamla zona bahari timur dalam penegakan hukum di laut maluku ditinjau dari perspektif harmonisasi hukum confrences on the standardization of geographical names ( uncsgn ) dan 92 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters united nations group of expert” (2021) 1:2 pamali pattimura magister law rev 121–146. fitriana, mia kusuma, “peranan politik hukum dalam pembentukan peraturan perundang-undangan di indonesia sebagai sarana mewujudkan tujuan negara ( laws and regulations in indonesia as the means of realizing the country ’ s goal )” (2015) 12:02 j legis indones 1–27. irfani, nurfaqih, “asas lex superior, lex specialis, dan lex pesterior: pemaknaan, problematika, dan penggunaannya dalam penalaran dan argumentasi hukum” (2020) 16:3 j legis indones 305–325. khasan, moh, “prinsip-prinsip keadilan hukum dalam asas legalitas hukum pidana islam” (2017) 6:1 rechts vinding media pembin huk nas 21–36. lugianto, adil & arief hidayat, “politik hukum dalam upaya pengendalian pencemaran bahan berbahaya dan beracun di wilayah laut yang berada dibawah kedaulatan indonesia” (2012) 7:2 law reform 43–74. meinarni, ni putu suci, “upaya hukum dalam penyelesaian sengketa pencemaran lingkungan laut dalam kasus tumpahan minyak montara di laut timor” (2016) 5:4 j magister huk udayana 833–870. mujiono & fanny tanuwijaya, “formulasi korporasi sebagai subjek hukum pidana dalam regulasi lingkungan hidup di indonesia” (2019) 6:1 lentera huk 55–70. parikesit, rio admiral, “penerapan asas legalitas (legaliteit beginsel/wetmatigheid van bestuur) 93 | indonesian journal of law and society dalam kebijakan sentralisasi pengharmonisasian peraturan perundangundangan” (2021) 18:4 legis indones 450–459. purwendah, elly kristiani, “pengaruh bendera kapal bagi kasus pencemaran minyak kapal tanker” (2020) 2:2 ganesha civ educ j 52–65. putri, ni kadek eny wulandari & kadek agus sudiarawan, “karakteristik pertanggungjawaban korporasi pada tindak pidana perusakan lingkungan hidup di indonesia” (2020) 8:11 kertha semaya j ilmu huk 1717–1728. ridwansyah, muhammad, “pengaturan tindak pidana dalam undang-undang nomor 32 tahun 2009 tentang perlindungan dan pengelolaanlingkungan hidup (tinjauan fiqh albi’ah)” (2017) 6:2 j huk dan peradil 173–188. seroja, triana dewi & winda fitri, “implementasi dan implikasi asas kekhususan sistematis pada tindak pidana telekomunikasi” (2019) 4:2 j law policy transform 104–122. suherman, asep, “liability under the shipping law” (2020) 5:1 bina huk lingkung 133–152. sulistina et al, “the pathway of adopting omnibus law in indonesia’s legislation: challenges and opportunities in legal reform” (2022) 2:2 j kaji pembaharuan huk 155–182. suyartono, “lebih jauh tentang tumpahan minyak di laut,” kementeri energi dan sumber daya miner direktorat jenderal miny dan gas bumi (2014) 1, daring: <https://migas.esdm.go.id/post/read/lebih-jauh-tentangtumpahan-minyak--di-laut>. 94 | legislative policy and accountability for pollution crimes by ship operations in indonesian waters widayati, lidya suryani, “perluasan asas legalitas dalam ruu kuhp” (2011) 2:2 negara huk 307–328. widodo, bl hentri & eni tri wahyuni, “manajemen penanggulangan tumpahan minyak di laut akibat dari pengoperasian kapal” (2020) 22:1 maj ilm gema marit 60–66. ———, “manajemen penanggulangan tumpahan minyak di laut akibat dari pengoperasian kapal” (2020) 22:1 maj ilm gema marit 60–66. maulana, hadi, “pt timah gunakan oil booms atasi pencemaran laut akibat kip 10 karam,” (2019), daring: kompas.com <https://regional.kompas.com/read/2019/09/02/16185291/pttimah-gunakan-oil-booms-atasi-pencemaran-laut-akibat-kip10-karam>. nurdin, ajang, “perairan batam tercemar limbah minyak dari kapal tenggelam,” (2021), daring: liputan6 <https://www.liputan6.com/regional/read/4449203/perairanbatam-tercemar-limbah-minyak-dari-kapal-tenggelam>. rahmad, “in picture tumpahan solar cemari pesisir desa hagu selatan lhokseumawe,” (2022), daring: republikacoid <https://www.republika.co.id/berita/rauu4k314/tumpahansolar-cemari-pesisir-desa-hagu-selatan-lhokseumawe>. undang undang nomor 17 tahun 2008 tentang pelayaran; undang undang nomor 32 tahun 2009 tentang perlindungan dan pengelolaan lingkungan hidup; microsoft word ijls uche.doc indonesian journal of law and society (2022) 3:1 123-156 issn 2722-4074 | https://doi.org/10.19184/ijls.v3i1.28764 published by the university of jember, indonesia available online 10 may 2022 _____________________________ * corresponding author’s e-mail: uchennawulezi@gmail.com promoting responsibility to protect through nonstate armed groups: overcoming the legal and regulatory constraints uche nnawulezi* alex ekwueme federal university ndufu alike ikwo, nigeria hilary nwaechefu redeemer’s university, nigeria abstract: promoting responsibility to protect through non-state armed groups will immensely reduce humanitarian crises around the globe. this paper aimed to analyze in detail the notion of responsibility to protect through non-state armed groups and its constitutive elements and set out a legal test that will expand the pre-existing notion of humanitarian intervention. in doing so, the paper advanced several conceptual arguments that focused on the responsibility to protect. the paper analyzed its views in light of contemporary developments on the responsibility to protect. the paper adopted a diagnostic approach based on a review of the literature and an evidence-based analysis of the humanitarian engagement of non-state armed groups. this paper showed the importance of reiterating that if the future of humanitarian intervention must be guaranteed, the need to take cognizance of the significant role of non-state armed groups in conflict mediation or intervention should not be overlooked. it is advanced that the continued neglect of non-state armed groups in conflict mediation or intervention portends a clog in responsibility to protect during armed conflicts. keywords: responsibility to protect, non-state actors, armed groups. copyright © 2022 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 27/12/2021 reviewed: 15/04/2022 revised: 05/05/2022 accepted: 09/05/2022 how to cite: nnawulezi, uche & hilary nwaechefu, “promoting responsibility to protect through non-state armed groups: overcoming the legal and regulatory constraints” (2022) 3:1 indonesian journal of law and society 123-156, online: <https://doi.org/10.19184/ijls.v3i1.28764>. 124 | promoting responsibility to protect through non-state armed groups i. introduction the emergence of all forms of armed conflicts, internal disturbances, and terrorism encourages the importance of promoting the responsibility to protect through non-state armed groups. these forms have forced millions of people to become internally displaced or refugees around the globe seeking shelter and protection in other countries.1 however, the government's inability to adequately respond to these unabated disasters has led to the formulation of 'responsibility to protect' the basic human rights of their citizens and the level of engagement of the non-state actors in stepping in when states are incapacitated. the above concerns are the primary theme of the discussion. it considers that one has to determine whether the level of intervention is adequate to abate or mitigate the humanitarian disasters involving mass atrocities, hunger, and or crimes committed against human persons2 before one can suggest any reasonable question on the responsibility to protect. for instance, on february 27, 2007, the international criminal justice issued an essential judgment in the case concerning the application of the convention on the prevention and punishment of the crime of genocide3. the court stated that the obligation "to prevent" can within the scope of the convention imposed an obligation that was not territorially limited. therefore, international humanitarian law provides that if a party to an armed conflict with control of non-combatants4 is unable or unwilling to meet their needs, offers may be made to carry out relief actions that are 1 see united nations high commissioner for refugees mid-year trends report 2015, by unhcr (unhcr, 2015). 2 boissonde chazourmes, laurence boisson, & luigi condorelli, “common article 1 of the geneva conventions re-visited: protecting collective interests” (2000) 82:837 international review of red cross 67–87. 3 application for revision of the judgment of july 11, 1996, in the case concerning "application of the convention on the prevention and punishment of the crime of genocide (bosnia and herzegovina v yugoslavia); preliminary objections" (yugoslavia v bosnia and herzegovina), 2003 icj. 4 convention (iv) respecting the laws and customs of war on land and its annex: regulations concerning the laws and customs of war on land, 1907; protocol additional to the geneva conventions of august 12, 1949, and relating to the protection of victims of international armed conflicts (protocol i), 1977. 125 | indonesian journal of law and society humanitarian and impartial. this conception is to emphatically underscore the need for global community or state actors' conscious and positive measures upon which the non-combatants will be adequately protected. the responsibility to protect does not apply to other violations and abuses of human rights. instead, it is restricted to four components of mass atrocity crimes such as genocide, ethnic cleansing, war crimes, and crimes committed against human persons. in this sense, the un security council resolution urged the council to uphold its commitment to the responsibility to protect and protect civilians. it utilizes bilateral meetings with states at their permanent missions to the un in new york. in the same vein, the un general assembly held a plenary meeting on the responsibility to protect. it included to prevent genocide, war crimes, ethnic cleansing, and a crime against humanity as part of the agenda of its 75th session that presented a significant opportunity for the un membership to take stock of efforts to prevent or halt mass atrocities crimes. nevertheless, the responsibility to protect remained the most effective principle around which the international community can coalesce when vulnerable populations are faced with threats of the atrocity of crimes. as a complementary effort, the human rights council, on july 24, 2020, adopted resolution 44/14 at its meeting on the responsibility to protect5 populations from genocide, war crimes, ethnic cleansing, and crimes against humanity, as enshrined in the 2005 world summit outcome. in its resolution, the council discussed best practices for strengthening national policies and strategies to implement the responsibility to protect through national mechanisms and other stakeholders.6 also, it is important to stress that advancing the responsibility to protect through non-state armed groups can increase respect for international humanitarian law since most contemporary armed conflicts are non-international. in this sense, engaging non-state armed groups in conflict intervention and management will be laudable if they are meant to be accountable for abuses and 5 united nations human rights council: intersessional panel discussion on the 15th anniversary of the responsibility to protect, (2011), online: <https://www.ohchr. org/hr/bodies/hrc> accessed april 28, 2022. 6 see 60/1. 2005 world summit outcome, a/60/l1 2005 para 138-140. 126 | promoting responsibility to protect through non-state armed groups disrespect to international humanitarian law. given the current issues surrounding the consequences of adopting a unilateral decision on the use of non-state armed groups in the responsibility to protect, it will be neater and more effective to have a mutual agreement between the international community and non-state armed groups. otherwise, a unilateral decision is likely to influence non-state armed groups' attitudes, especially where there are certain obligations in the implementation, enforcement, supervision, and or monitoring of the rules of international humanitarian law during armed conflicts.7 the engagement of non-state armed groups will undoubtedly reduce the humanitarian impacts and minimize the level of destruction experienced during armed violence by combatants.8 thus, this argument was reinforced and sustained by adopting several techniques, including counterinsurgency, containment, negotiation, integration, and adoption.9this paper aims not to investigate the failures of the state or international community to protect its citizens during armed violence. instead, it is to verify whether extending the responsibility to protect through non-state armed groups will increase the opportunities for conflict resolutions and or meditation, as the case may be. however, if organized armed groups decide to carry out government functions and exercise effective sovereignty, they are bound by the rules of international humanitarian law.10 also, if armed groups have reached a certain level of organization, stability, and effective control of territory, they can then be considered to possess international legal personality. it renders them bound by customary international law. in 7 s sivakumaran, the law of noninternational armed conflict (oxford: oxford university press, 2012). 8 c hofmann & u scneckener, “how to engage armed groups reviewing options and strategies for third parties” (2011) 29:4 security apparatuses in fragile and authoritarian states 254–59. 9 mediating peace with proscribed armed groups, by veronique dudouet, special report 239 (washington dc: united states institute of peace, 2010); c hofmann, “emerging non-state armed groups in humanitarian action” (2006) 13:3 international peacekeeping journal 396–409 at 397,409. 10 jk kleffner, “the applicability of international humanitarian law to organized armed groups” (2011) 93:882 international review of red cross 443–461. 127 | indonesian journal of law and society light of the international legal personality possessed by the non-state armed groups, the darfur commission of inquiry posits that: all insurgents that reached a certain threshold of organization, stability, and effective control of territory, possessed international legal personality and were bound by the relevant rules of customary international law on internal armed conflicts.11 the above view does not entirely detach the construction of the binding force of international humanitarian law on organized armed groups from states. the growing significance of responsibility to protect through nonstate armed groups has led to several multilateral efforts capable of controlling or impacting access to some regions where people are in dire need of humanitarian assistance or protection due to armed violence. however, non-state armed groups have certain obligations prescribed under international humanitarian law regarding how they conduct hostilities and the treatment of non-combatants in the occupied territories. this paper has carefully perused all the existing legal frameworks and discovered many inadequacies and examined various measures to address humanitarian crises worldwide. this paper emphasizes seeking to be laid conscious and focused on regulation and monitoring by state actors in the responsibility to protect. aside from the hague conventions adopted in 1899 and 1907, which focused on the prohibition of warring parties from using certain means and methods of warfare, several other related treaties have been adopted since then. however, the geneva conventions of 1864 and subsequent geneva conventions, notably the four 1949 geneva conventions and the two 1977 additional protocols, focused on protecting persons not or no longer taking part in hostilities. ii. methods the paper adopted a diagnostic approach based on a review of the literature and an evidence-based analysis of the humanitarian engagement of nonstate armed groups. the data was obtained through primary and secondary 11 see report of the international commission of inquiry on darfur to the united nations secretary-general, by united nations (geneva, 2005) para 172. 128 | promoting responsibility to protect through non-state armed groups resources. the primary resources consisted of relevant laws relating to the responsibility to protect. they were such as the hague conventions adopted in 1899 and 1907, which focused on the prohibition of warring parties from using certain means and methods of warfare. it also included the geneva conventions of 1864 and subsequent geneva conventions, notably the four 1949 geneva conventions and the two 1977 additional protocols, which focused on protecting persons not or no longer taking part in hostilities. meanwhile, the secondary resources were taken from books, law journals, and other academic documents discussing the responsibility to protect. iii. theoretical concept of the responsibility to protect the thematic focus of 'responsibility to protect' is broad and allencompassing. the starting point of this analysis is that the responsibility to protect expands the pre-existing notion of humanitarian intervention as a species of international armed conflict which must be determined solely based on the prevailing circumstances. besides being widely held, this view is reflected notably in international instruments and jurisprudence and some military manuals.12 therefore, the seeming failure of the international community to adequately respond to mass atrocities crimes as genocide, crimes against humanity, war crimes, and ethnic cleansing. its summit led to the un adopting the responsibility to protect as a principle for proactive measures over different global humanitarian catastrophes.13 interestingly, the convention on the prevention and punishment of the crime of genocide (genocide convention)14 was the first human rights treaty adopted by the un general assembly, which signified the international community's commitment to never again after the atrocities committed during the second world war. in a similar vein, article 61 of the international covenant on civil and political rights 196615 its emphasis is 12 the laws of war on land. oxford, september 9, 1880, article 41. 13 see united nations world summit 2005. 14 convention on the prevention and punishment of the crime of genocide, 1951. 15 international covenant on civil and political rights, 1976 article 61. 129 | indonesian journal of law and society on the inherent right to life and posits that the law shall protect such right and no one should be deprived of his right to life. in countries that have not abolished the death penalty, the sentence may be imposed only for the most serious crimes under the law in force at the commission of the crime. it is also not contrary to the position of the present covenant and the convention on preventing and punishing genocide. when deprivation of life constitutes the crime of genocide, nothing in this article shall authorize any state party to the present covenant to derogate from any obligation assumed under the convention on the prevention and punishment of the crime of genocide. again, the 1948 un genocide convention created an international legal culture recognizing the commission of genocide as a crime beyond any justification. also, the heinous atrocities during the conflict in rwanda and the former yugoslavia, the 1998 rome statute16 provided a tool that could finally make a shared international commitment against genocide possible in practice. in this respect, the 1998 rome statute and the international criminal court offered a permanent framework for states to investigate and prosecute genocide committed since 2002. be that as it may, the principle of responsibility to protect has been fashioned out as an international approach adopted by all state parties of the un at its global summit to address four major international community concerns. however, a cursory look at its meaning in recent times has provided a better insight into the exact meaning of the responsibility to protect. this paper's emphasis sought to be laid conscious and focused on regulation. it will enable us to establish the components of a legal test for determining the extent of the responsibility to protect international humanitarian law. this understanding of the principle of responsibility to protect is ascertained based upon the existing premise that sovereignty entails a responsibility to protect all persons from mass atrocity crimes or human rights infringements during armed violence.17 16 see rome statute of international criminal court 1998. 17 united nations office of the special adviser on the prevention of genocide. 130 | promoting responsibility to protect through non-state armed groups the responsibility to protect implies respect for the norms and principles of international law and international humanitarian law, especially looking at the existing principles of law concerning sovereignty, security, peace, human rights, and or armed violence.18 however, the scope and definition of the principle of responsibility to protect can be viewed from three major perspectives. first, the state's responsibility to protect. second, global assistance from the international community, capacity building, and timely and decisive collective response.19 however, applying the principle of responsibility to protect can only be necessary when there are mass atrocity crimes such as genocide, crimes committed against human persons, atrocities of armed violence, and clannish purification. the responsibility to protect is a question of degree. the notion and definition of responsibility to protect as adopted at the 2005 world summit could be expanded in light of changes in new technologies of warfare and the use of force.20 it has been notably contended that the development of modern technologies has tremendously increased the level of resorts to armed violence and compels the need for states to be proactive in protecting their citizens. the adoption of the principle of responsibility to protect in 2005 demonstrated the state's resolve and commitment to the responsibility to protect. the term "responsibility to protect" has a broad and narrow meaning. the broad meaning extends the term to encompass state parties' involvement or policies that bother on the responsibility to protect. meanwhile, the narrow meaning limits the term to direct state parties' control or decisions concerning the responsibility to protect. however, it is very open to question whether the principle of responsibility to protect has lived up to expectation, given today's current situations and high uprisings. it will be hyperbolic to say that the responsibility to protect has failed because of the above situation, as some people are compelled to say. on the conceptual level, member states had requested further 18 aidan hehir, “the responsibility to protect and international law” in philip cunliffe, ed, critical perspectives on the responsibility to protect interrogating theory & practice (new york: taylor & francis, 2011) at 84-100. 19 see the responsibility of states for internationally wrongful acts, 2016. 20 marten zwanenburg, “’the law of occupation re-visited: the beginning of an occupation” in yearbook of international humanitarian law (2007) at128-129. 131 | indonesian journal of law and society clarification on the basis for taking collective action under the third pillar of responsibility to protect. in particular, it allows the use of military force by the security council when states woefully fail to provide adequate protection for their citizens during military operations. there are some challenging issues associated with the responsibility to protect that have compelled debates in policy-making and the academic spheres. the issues deal with the precise status ranging from the question of its powerful novel mechanism, the existing moral primacy of peace extending permissible military action, to its legal force. finally, it enquires as it should be described as a principle and or has attained the status of a globally accepted norm through constant usage and practice.21 in other words, there is a school of thought that supports a broad application of this principle in the sense that the responsibility to protect does challenge states to meet their existing obligations.22 however, some arguments favoring responsibility to protect are predicated on the assumption that it rests on an unarticulated international obligation principle.23 in maintaining public order and safety, the issue often arises on how the two governing frameworks of humanitarian and human rights law interplay. while it might be tempting to view responsibility to protect as a legal measure to prevent mass atrocity crimes, it stands to reason that its application has received mixed feelings from state parties. it is demonstrated in libya and other counter-insurgencies of the 21st century. the operational concerns when the question of military intervention comes into play to the third aspect of responsibility to protect involves the use of appropriate peaceful or coercive means in the protection of non-combatants where state parties failed to protect its citizens adequately. accordingly, one could argue that the aftermath of the intervention in the libyan war 21 rh cooper & jv kohler, responsibility to protect, the global moral combat for the 21st century (basingstoke palgrave macmillan, 2010); c stahn, “responsibility to protect: political rhetoric or emerging legal norm?” (2007) 101 american journal of international law 99–120. 22 andrew clapham & paola gaeta, eds, “the law applicable to peace operations” in the oxford handbook of international law in armed conflict (oxford: oxford university press, 2014) at 216. 23 bain william, “responsibility and obligation in the ‘responsibility to protect” (2010) 36:51 review of international studies 25–46. 132 | promoting responsibility to protect through non-state armed groups reinforced much of the uncertainties around the responsibility to protect parameters. it contributed to the division within the un security council on the continuing crisis in syria. it is on the strength of the above that asha-rose migiro24 maintained that: the global acceptance of the responsibility to protect is not just because of its simplicity but due to its fundamental relevance in protecting non-combatants who may be at risk of genocide or mass atrocity crimes arising from armed violence. notwithstanding the above observations, positive duties of protecting and fulfilling a right are likely to raise further concerns that must be examined, especially in situations such as the state's responsibility to protect civil and political rights. the positive obligation to protect can manifest itself in several ways. peter hilpold,25 while commenting on the principle of responsibility to protect opined that the likelihood of responsibility to protect graduating into a norm of customary international law26 is farreaching. he stated further that the responsibility to protect and its speedy acceptance in the era of mass atrocities due to new technologies of warfare suggest that international law is in urgent need of humanization.27 the basis of responsibility to protect from the various views examined is that the legal basis of military interventions is primarily centered on the state obligations under the charter and or under international law.28while the above expression emphasizes the state's role in the use of force in responsibility to protect, it is not in all cases that states may adopt the use of force in responsibility to protect. 24 asha-rose migiro was the deputy secretary-general of the united nations from 2007 to 2012. 25 h peter, "intervening in the name of humanity: responsibility to protect and the power of ideas" (2012) 17:1 journal of conflict and security law 49–79. 26 international court of justice statute, article 38(1). 27 ibid. 28 see chapter vii of the united nations charter 1945, un (2011) resolution on libya (s/res/1973), online <http://www.un.org/en/sc/documents/resolutions/2011. shtml> accessed december 26, 2021. 133 | indonesian journal of law and society iv. humanitarian intervention the development and extensive use of "humanitarian intervention" as legal authority to protect non-combatants are traceable to the era when states resort to the right to use forceful measures as self-defense, including the defense of their mandate. these, however, have remained a controversial implied right in all un peacekeeping operations where various opinions expressed tilted towards a justification for the use of force.29 the international humanitarian law treaty does not define humanitarian intervention or provide a clear interpretation. however, rather humanitarian intervention emerged from state practices over time or international jurisprudence. however, the notion of humanitarian intervention suffers from a lack of precision as to what the term connotes.30 thus, humanitarian intervention is a means to prevent or stop gross violations of human rights in a state where such a state is either incapable or unwilling to protect its people or is actively prosecuting them. many scholars have identified the 1990s as a decade of humanitarian intervention during which the un authorized several interventions on humanitarian grounds.31 during the 1990s, even as the security council was increasingly willing to authorize humanitarian intervention, the united states and its allies took military action on at least three occasions for express humanitarian purposes when the security council did not authorize the specific action.32 although humanitarian intervention does exist in state practice, state practice has been deemed a source of law under article 38(1)(a) of the international court of justice, considering the hegemony of the sources of 29 see united nations department of peacekeeping operations, general guidelines for peace keeping operations, un doc. un/210/tc/gg95 (1995), online: <http://www.un.org/depts/dpko/training/tes/publications/books/peacekeepingtraining/guide_en.pdf> accessed december 26, 2021. 30 i brownlie, international law and the use of force by states (oxford: clarendon press, 1963) at 26. 31 m kaldor, human security: reflections on globalization and intervention (cambridge: polity press, 2007) at 16. 32 see the establishment of no-fly zones in northern and southern iraq in 1991 and 1992, the bombing of the bosnian serbs by nato in 1995, and nato's kosovo campaign against yugoslavia in 1999. 134 | promoting responsibility to protect through non-state armed groups law in the same provisions. there is a generally accepted notion that state practice cannot overrule treaties and customary law, both of which denounce the use of force except in self-defense33. there is no legal rule governing the exception of humanitarian intervention to the use of force, as there is for collective security measures and self-defense. the criteria for applying humanitarian intervention stems from the fact that it is no state's prerogative to allow the wanton disregard and violations of human rights. therefore, if such wanton disregard and violations occur, another state or other states may intervene to end it.34 the norms of sovereignty have still not changed to allow for unauthorized humanitarian intervention, but the only intervention for humanitarian purposes that seem to be widely accepted are those authorized by the security council under the provisions of chapter vii of the un charter.35 the relatively more binding framework of chapter vii of the un charter is preferred to violate one state's sovereignty for humanitarian purposes. realistically, article 2(4) of the un charter36 provides for sovereignty and political independence of any state, but this principle shall not prejudice the application of enforcement measures under chapter vii. in sum, the invasion of iraq failed to meet the test for humanitarian intervention. the security council did not approve invasion, and the iraqi government violently opposed its existence on the line.37 as the protection of noncombatants has become increasingly prominent in international relations discourse and humanitarian practices, the term intervention came into use over the nineteenth century, but its meaning remained imprecise. however, where states regulate the use of force as self-defense in humanitarian 33 wd werwey, “humanitarian intervention under international law” (1985) 32:3 netherlands international law review 357–418. 34 humanitarian intervention, nato and international law: can the institution of humanitarian intervention justify unauthorized action?, research report, by clara portela, research report 00.4 (berlin: berlin information-center for transatlantic security (bits), 2000). 35 the charter of the united nations 1945, chapter vii. 36 the charter of the united nations, 1945, article 2(4). 37 human rights watch, "war in iraq: not a humanitarian intervention," human rights watch (hrw) (2004), online: <https://www.hrw.org/news/2004/01/25/wariraq-not-humanitarian-intervention>. 135 | indonesian journal of law and society intervention, the mode or manner of its enforcement or application will not offend the rules of international humanitarian law. in this sense, it will be wrong for the states to enact any other law for humanitarian intervention that will be inconsistent with the provisions set out in the principal law. the humanitarian intervention approach to protecting non-combatants has been saddled with several criticisms. according to marc dubois,38 the global community twisted the concept of protection in such a manner to suites its selfish desires, even the most unwanted aid activities as protection. in the absence of a clear distinction between intervention and war,39 any regulation of the former could be circumvented by resorting to the latter. however, it is more often conceived as the classical origins of what became known as a humanitarian intervention which lies in the emergence of a substantive doctrine of the just war in the middle ages.40 indeed, the right to wage war is for punishment.41 in other words, some legal literature follows the same expansive view and supports the position that humanitarian intervention in the early twentieth century was inherently vague and found a variety of forms.42 the above position was further justified by grotius, who admitted that the right to wage war is for punishment,43 and such a right had been recognized by his scholastic predecessors as necessary to preserve order in a society lacking any higher tribunals to resolve disputes,44 but was generally limited to redressing injuries to the person or the state of the sovereign or where some other basis for jurisdiction justified the resort to war.45 this paper posits that in 38 marc dubois, "protection: the new humanitarian fig-leaf," groupe urd (2009), online: <https://www.urd.org/en/review-hem/protection-the-new-humanitarian-figleaf/>. 39 fransisco de vitoria, classic of international law (washington dc: carnegie institution, 1917). 40 joachim von elbe, “the evolution of the concept of the just war in international law” (1939) 33:4 american journal of international law 655–688 at 665. 41 hugo grotius, dejure belliac pacis libritires, classics of international law 3 (keslytans: oxford clarendon press, 1925) at 338. 42 ibid. 43 ibid. 44 john eppstein, the catholic tradition of the law of nations (london: burns dates & wash bourne, 1935) at 80. 45 hugo grotius, supra note 41. 136 | promoting responsibility to protect through non-state armed groups understanding humanitarian intervention, it is instructive to view it from any of the following definitive components. a. humanitarian intervention as a legal right it is noteworthy that humanitarian intervention exists as legal. this paper draws a distinction between the two schools of thought that justify it as a quasi-judicial police measure against the crimes of a sovereign and those who justify it as a defense of the rights of the defenseless. first, opinions differ on whether the idea of such a conception is legally tenable or not. in this sense, the paper notes that the first category is a publicist who defined the theory of humanitarian intervention as an attempt to give a juridical basis to the right of one state to exercise international control over the internal acts of another state are contrary.46 the above expression conforms with grotius's conception of punitive war. it was adopted by the representatives of "civilized" governments intervening in the affairs of other states. in addition, it would not be farfetched to imagine that a legal right has evolved, permitting the security council to decide on military enforcement measures to protect non-combatants within a state. this legal right has been formed by evolutionary interpretation and the informal modification of the un charter. it is through the subsequent practice of the council through its extensive interpretations and application of what constitutes a threat to the peace under chapter vii of the un charter.47 second, the other school of thought recognizes the legality of humanitarian intervention is dependent on the basis that a state is entitled to assert the right of its subjects vis-à-vis their sovereignty. for this reason, it has become imperative to admit that this is the modern equivalent of grotius's right to wage war on behalf of the oppressed.48 in the same vein, theorists in their writings restricted the right of humanitarian intervention on the 46 a rougier, “la theoriede ‘l’ intervention d’humanite”, 3 (rgdip, 1910). 47 the united nations charter 1945, article 39. 48 ibid. 137 | indonesian journal of law and society grounds of situations where civil war had broken out49 or acts of rebellion that broke the political bonds between sovereign and citizens.50 b. humanitarian intervention as political and unavoidable with regard to the humanitarian intervention being conceived as political and unavoidable, there are major challenges in evaluating the legal status of humanitarian intervention. there are several questions outside the realm of international law regarding its legality. however, this view finds support in law literature. therefore, despite the long-standing position of the un on this issue, sir william harcourt's position is that intervention is a question instead of policy than law. it is above and beyond the domain of law, and when wisely and equitably handled by those who have the power to give effect, it may be the highest policy of justice and humanity.51 it is clear from the above that despite the practical necessity of the principle of humanitarian intervention, the paper notes that various writers have echoed that international law had little to say about such high politics.52 conversely, other writers adopted a more subtle position, noting that there is scope for the moral evaluation of state behaviors independent of the legal regime. in a similar vein, the paper notes that herman rodecker von rotteck, whom stowell credited as the first to establish the theory of intervention on the ground of humanity,53 nevertheless, it should be considered a violation of the law, but sometimes excused or even applauded as one may excuse a crime.54 49 henry wager halleck, international law, or, rules regulating the intercourse of states in peace and war (kegan paul, trench, trübner, 1961) at 340. 50 william oke manning, commentaries on the law of nations, sheldon amos, ed (london, 1875) at 97. 51 harcourt wv, letters by historicus on some questions of international law (london: macmillan, 1863) at 14. 52 jn pomeroy, lecture on international law in time of peace (cambridge, massachusetts: riverside press, 1886) at 244-245. 53 ibid at 525. 54 we hall, treaties on international law (oxford: clarendon press, 1884) at 265. 138 | promoting responsibility to protect through non-state armed groups c. collective intervention the development and extensive use of humanitarian intervention under international law is evidence that the import of this requirement is to protect the interest of human persons. in this sense, it cannot be denied that public opinion and the powers' attitude favor such interventions. both international law and civil society organizations will recognize that interventions in the interests of humanity are admissible, provided they are exercised in the form of a collective intervention of the powers.55 one question that might be enquired is whether the security council may authorize article 42 measures to end serious or extreme human rights violations or humanitarian crimes. indeed, various opinions emerged as to the legitimacy of unilateral action. however, the legal situation changes when the un's humanitarian intervention or an appropriate regional body is authorized.56this support for multilateral action may be prompted by the feeling that if some formal international process authorizes coercive action, such as voting by the security council, then it acquires legality, which it would lack if the decision to intervene were left to the national governments acting unilaterally. the above position would have been better and more justifiable if the collective humanitarian intervention had been applied in order to curb the danger of abuse posed by unilateral intervention.57 with the current advances in the understanding of the collective humanitarian intervention, under article 39 of the un charter,58 the security council can only authorize cases of threat to the peace, breach of the peace, and acts of aggression.59a key point to note is that article 39 introduces the coercive powers of the council and provides for a two-step process that: 55 l francis & & l oppenheim, international law (new york: longmans green and co, 1905) at 1. 56 jost delbruck, “a fresh look at humanitarian intervention under the authority of the united nations” (1993) 67 indiana law journal at 887. 57 nancy d arnison, “international law and non-intervention: when do humanitarian concerns supersede sovereignty?” (1993) 17 fletcher forum world act at 199. 58 the united nations charter 1945, article 39. 59 the united nations charter 1945, chapter vii. 139 | indonesian journal of law and society the security council has the sole power to determine what amounts to a threat to peace, breach of the peace, or act of aggression and shall make recommendations or decide what measures are in line with article 42 in maintaining or restoring international peace, security, and order.60 the above overview highlights that the security council, like the other un organs, is bound by the principles, rules, and standards outlined in the un charter. its actions, therefore, are subject to legal scrutiny, both in content and in practice.61on a practical level, particularly regarding the russian government's threat and use of force and aggression against ukraine, the security council is primarily responsible for maintaining international peace and security under the un charter. the security council must determine when and where a united nations peace operation should be deployed. fundamentally, however, it is submitted that the ongoing russian invasion of ukraine has exposed many grave weaknesses in the international order. one prominent flaw that needs to be addressed is the un security council and its role in overseeing the multilateral system. for instance, the war in ukraine has once again shown the veto power of the security council's five permanent members to be a significant stumbling block to peace. as broadly examined, both chapter vi and vii of the un charter entrusted the responsibility of preventing threats to peace, suppressing acts of aggression, and bringing about peaceful settlement of international disputes to the security council. however, the absolute veto power granted by article 27 to each of the council's permanent members (the p5, comprising china, france, russia, united kingdom, and the united states) has from the beginning been a critical obstacle to the body's fulfillment of its mission. the p5 has always been divided into rival geographical blocs, with a member of one block, primarily russia or the united states, exercising its veto on many crucial decisions. drawing from the above illustration, the current ukraine conflict, russia's security council 60 ibid article 39. 61 d d caron, “the legitimacy of the collective authority of the security council” (1993) 87:552 american journal of international law, online: <https://lawcat. berkeley.edu/record/1114681/files/fulltext.pdf>. 140 | promoting responsibility to protect through non-state armed groups veto means that the united states and its allies can impose sanctions only through a coalition of the willing. v. non-state armed groups there is no internationally agreed definition of non-state armed groups in international treaties. given the increasing importance of non-state armed groups, this term refers to a non-state party to an international and noninternational armed conflict. however, international humanitarian law uses armed forces to designate and define the combatants fighting within a state party to the conflict. in addition, an important point to note herein is that non-state armed groups play a significant role in contemporary international and non-international armed conflicts. for the time being, when a non-state armed group acts under control or on behalf of a foreign state, international courts consider that such a state will be held responsible for those acts and that the conflict will be internationalized. thus, under non-international armed conflicts, additional protocol ii to the 1949 geneva convention62 defines non-state armed groups as dissident armed forces or other "organized armed groups” who fight regular armed forces or against each other on the territory of one or several states. the specific question is whether they can be considered parties to the conflict? however, to be considered parties to the conflict, they have to fulfill certain conditions such as being under a responsible command and exercising control over a part of their territory and/or carrying out sustained and concerted military operations implementing the existing protocol. the object and purpose of the above criteria are also to recall that a nonstate armed group that carries out military operations must fulfill under the organization, which includes rules of conduct and respect for the rules of international humanitarian law in its actions in combat. further, the un security council has established two sanctions regimes that can directly impact humanitarian action, referred to as the isila-qaida sanctions and 62 article 1(1) of additional protocol 1 of the 1949 geneva convention. 141 | indonesian journal of law and society the taliban sanctions.63 these sanctions regimes are framed in counterterrorism relevant to humanitarian action in the 1999 international convention for the suppression of the financing of terrorism.64 under this treaty, it is an offense to provide or collect funds by any means, directly or indirectly, to carry out an act of terrorism. considering the importance that states attach to protecting critical infrastructures during armed conflicts, additional protocol ii compels all the parties to the conflict, whether state or non-state actors, to comply with the relevant rules of international humanitarian law.65 similarly, non-state armed groups under international armed conflicts are regarded as national liberation movements fighting against colonial oppression and foreign domination of their land. it is made clear by additional protocol 1 of the 1977 to 1949 geneva conventions, which assimilates those situations into international armed conflicts and allows the members of such groups to be granted combatant status if they carry arms openly and respect the relevant laws of war.66 despite these arguments, it is clear that international criminal tribunals have contended that while a certain level of organization is required,67 nonstate armed groups do not need a hierarchical system or military organization similar to those of regular armed forces to be considered as such.68it is common to state that for a group to qualify as an organized armed group, which can be a party to a conflict within the meaning of international humanitarian law. such an armed group needs to have a level of organization that allows it to carry out sustained acts of warfare capable of complying with the rules of international humanitarian law. however, given these realities, organized armed groups must have some form of 63 security council resolution 1267, 1999, and security council resolution 1390, 2002. 64 international convention for the suppression of the financing of terrorism 1999 article 2. 65 additional protocol ii of 1977. 66 additional protocol i of 1977. 67 prosecutor v limaj et al. (trial judgment), 2005 international criminal tribunal for the former yugoslavia (icty) para 89. 68 see the prosecutor v alfred musema (judgement and sentence), 2000 international criminal tribunal for rwanda (ictr) para 257. 142 | promoting responsibility to protect through non-state armed groups responsible command and the capacity to enforce the rules of international humanitarian law. in this context, this would seem to preclude virtually organized groups from qualifying as organized armed groups. it would be difficult to establish an effective system of discipline within such a group to ensure respect for the rules of international humanitarian law.69however, regardless of what name such an armed group chooses, what is apparent is that additional protocols 1 and 11 to the geneva conventions, as we have seen above, aim to ensure maximum compliance with the rules of international humanitarian law by armed groups. indeed, what the laws contemplate in terms of enforcement of the rules of international humanitarian law is similar, although different names describe them. non-state armed groups are vulnerable because of their criminalization by domestic laws. a cursory look at its operations reveals that they need to obtain international permission for its operations. in this regard, they are often not opposed to humanitarian law rules as long as they do not constitute obstacles or threats to the effective performance of combatants' operations. also, it is worth mentioning that international humanitarian law does not provide a particular status to members of non-state armed groups in situations of non-international armed conflicts. however, there is no doubt, for instance, that members of national liberation movements in international armed conflicts have a different case. members of non-state armed groups operating in non-international armed conflicts cannot enjoy the prisoners of war status if they are captured on the battlefield.70 by emphasizing the limitations and or obligations imposed on members of non-state armed groups, international jurisprudence has also recognized that customary international humanitarian law prescribes that all individuals involved in armed conflict must comply with humanitarian law rules. whether acting on behalf of state or non-state actors, these individuals have agreed to be bound by these rules.71 the preceding observation is further reinforced by the fact that additional protocol 1 and 69 michael schmitt, “classification of cyberconflict” (2012) 17':2 journal of conflict and security law 245–260 at 256. 70 the geneva convention 1949, article 4. 71 see prosecutor v sam hinga norman decision on preliminary motion based on lack of jurisdiction (child recruitment), 2004. 143 | indonesian journal of law and society 11 of 1977 has expressly provided proper guidance in the operations of non-state armed groups. vi. inter-play between responsibility to protect and humanitarian intervention the underlying principles of "responsibility to protect" and "humanitarian intervention" as two legal norms seek to balance two divergent interests based on criteria bordering on necessity and proportionality. in this sense, the former is based on the consideration of military intervention, while the latter focuses on the requirements of humanity when the rights or prohibitions are not absolute.72 these are also significant, highlighting the mutual reinforcing interplay between "responsibility to protect" and "humanitarian intervention." nevertheless, beyond their specific contexts, humanitarian intervention is analogous to the common law defense of other principles and the responsibility to protect the concept under international law.73 the existence of the two terms suggests that both state parties and the global community have the power to respond to mass atrocity crimes such as genocide, crimes against humanity, war crimes, and ethnic cleansing when it becomes compelling. as pointed out by the security council, the two concepts in the previous circumstances arise from the compelling reason to save the global community from extinction. indeed, article 39 permits the security council to identify what amounts to a "threat to peace."74 also, article 40 enables the security council to take preliminary steps to reestablish peaceful conditions.75 more specifically, article 42 authorized or required state parties to launch military countermeasures aimed at reestablishing conditions of peace and security in the occupied territories.76 72 additional protocol 1 of 1977, article 51(4) and 5. 73 j moore, humanitarian law in action within africa (oxford university press, 1961). 48. 74 the united nations charter 1945 article 39. 75 ibid article 40. 76 see united nations security council resolution 678, s/res/0678 (1990), article 42 of the united nations charter 1945. 144 | promoting responsibility to protect through non-state armed groups what can be deduced from the above provisions within the context of the responsibility to protect and humanitarian intervention is the authorization of the use of force to protect libyan non-combatants. it is against mass atrocity crimes such as genocide, crimes against humanity, war crimes, and ethnic cleansing. as pointed out earlier in this paper, it was evidently in line with the responsibility to protect and humanitarian intervention. further, the legal basis of this intervention is primarily anchored on the authorization by the un security council. most fundamentally, the provisions of article 51, which requires an "armed attack" before the use of force in self-defense, have raised questions about what states must do if the security council fails to take action under chapter vii.77 interestingly, the emergence of customary law and secondary sources of international law has placed restrictions on the unwarranted use of force in the guise of self-defense in light of the open language of the un charter. such operations have raised numerous legal questions on the so-called humanitarian intervention or the use of force by one state to stop widespread human rights abuses within the territorial boundaries of other states and the responsibility to protect in such situations. it must be borne in mind when considering the practical feasibility of both concepts. first, humanitarian intervention is perceived as a tricky rationale for using military force. on one part are, bound to be mixed motives, including territorial acquisitiveness, and on the other part, even if the defense of others is the primary motivating cause, humanitarian intervention still runs counter to the norms of non-intervention in the internal affairs of a state also enshrined in the un charter.78 despite the absolute nature of the humanitarian intervention, similar comments were also made about the responsibility to protect. humanitarian intervention, which purports to justify a state's military action in preventing human rights abuses in another state, plays a complementary role with the responsibility to protect, which implies that states are under obligations to end such human rights abuses. moreover, this interpretation is borne out of the reality that affected states consider 77 see united nations, charter of the united nations (1945). 78 ibid article 2(7). 145 | indonesian journal of law and society themselves highly responsible for the safety of their civilian populations. it requires a proactive and genuine political commitment from the state parties through rapid changes in its internal legislative and institutional policies to meet its obligations. a possible compromised position would be to accept that the responsibility to protect is still in the throes of progressive development under international law. on the other hand, the conceptualization of responsibility to protect as a mere aspiration compels consideration of other deterrence tools like humanitarian intervention. it informed the need for the security council to codify it by adopting a resolution setting out principles that will guide them when deciding whether to authorize or mandate the use of force.79 essentially, this paper does not argue against the potential corruption of the responsibility to protect and humanitarian intervention in the cynical service of national self-interest. the fact shows that the more longstanding norm of humanitarian intervention tolerates military intervention by another state in extreme emergencies. the apparent fact is that the responsibility to protect is not that permit military intervention. however, in extreme cases, it will require the state to assist other states facing humanitarian crises. it is important to note that the emergence of the two concepts has raised several questions about their applicability and acceptability under international law. indeed, it suggests a clamor for structural integration of these concepts within our international and regional laws since its understanding and applications at the international level are rather complex and a function of multiple channels of interactions between agents of state parties and those subject to the regime of rules and the process of implementation depending on form and structure of the global community. 79 kofi annan in united nations, "secretary-general presents report 'in larger freedom' to general assembly, outlining ambitious plan for united nations reform," united nations (2005), online: <https://www.un.org/press/en/2005/ ga10334.doc.htm>. 146 | promoting responsibility to protect through non-state armed groups vii. non-state armed groups in responsibility to protect: a complimentary effort the word "non-state armed groups," which literally refers to a non-state party to an international or non-international armed conflict, was intended to promote international and regional peace and security in conflict mediation, management, and intervention to mitigate humanitarian catastrophes of armed violence. it is noteworthy. however, the engagement of non-state armed groups in responsibility to protect could facilitate the delivery of humanitarian assistance or ensure that the rules of international humanitarian law are promoted in line with international norms and standards. in addition, non-state armed groups may be engaged in services related to the protection of non-combatants and or conflict resolution through dialogue, mediation, and negotiation. with these considerations in mind, the attempt to ensure compliance with the rules of international humanitarian law entails the introduction of varieties of tools and frameworks that can be adapted to promote compliance with the rules of international humanitarian law. for instance, the adoption of the deed of commitment80 under the geneva call for complete adherence to the total ban on anti-personnel mines and cooperation in mine action. nonetheless, it is undisputed that ever since the emergence of the geneva call in 2000, it has engaged with more than one hundred non-state armed actors around the globe on international humanitarian norms. the possibility of humanitarian organizations engaging all parties to the conflict on possible measures capable of reducing humanitarian catastrophes through mediation or conflict management was provided under article 3 of the geneva convention.81 the fundamental reason non-state armed groups should be engaged for humanitarian purposes is to control, impact, or have quick access to territories where there are non-combatants in dire need of assistance or protection. in a broader context, they have obligations under international 80 geneva call, "deed of commitment for adherence to a total ban on antipersonnel mines and cooperation in mine action launched in 2000", geneva call, online: <http://www.genevacall.org/how-we-work/deed-of-commitment/>. 81 article 3 of the geneva convention 1949. 147 | indonesian journal of law and society humanitarian law regarding how they conduct hostilities and the treatment of non-combatants in the occupied territories. despite the advances of non-state armed groups in responsibility to protect, as major actors in modern armed violence, approaches of the state and international organizations in dealing with non-state armed groups have given rise to certain drawbacks and limitations.82 notwithstanding these critical advances in responsibility to protect, it is also significant to note that international humanitarian law has expanded its coverage of noninternational armed conflicts. it has drafted or revised various treaties to regulate states and armed groups that may be parties to such conflicts. also, customary international law has followed the same step in the said expansion in ensuring that the rules of international humanitarian law are strictly adhered to by all parties.83 it brings to the fore the legal personality of non-state armed groups. it would be crucial to maintain that under international customary law, non-state armed groups that have reached a certain level of organization, stability, and effective control of territory can be considered to possess an international personality. in this sense, they are bound by customary international law and international humanitarian law rules.84 despite its prevalence, non-state armed groups have deeply been involved in promoting the rules of international humanitarian law by integrating them into their doctrines, codes of conduct, disciplinary regulations, and other internal normative instruments. it is evidenced with, for instance, preparing public commitments in observing international humanitarian law in the form of unilateral declarations or deeds of commitments and using the special agreements among the parties to a non-international armed conflict envisaged in article 3 of the geneva convention.85 the 82 claudia hofmann, engaging armed actors in conflict mediation: consolidating government and non-governmental approaches (chatham house research papers april 2016). 83 a roberts & s sivakumaran, “law-making by non-state actors: engaging armed groups in the creation of international humanitarian law” (2012) 37 journal of international law at 1. 84 jj.k kleffner, supra note 10. 85 see article 3 of the geneva convention 1949. 148 | promoting responsibility to protect through non-state armed groups organization may also seek for more significant impact in terms of protection outcomes to complement its engagement by reference to local customs, beliefs, and traditions, where they overlap with international humanitarian law. today, in the so-called "global war on terrorism," states have adopted different approaches to what is prohibited. some states have followed the language of the 1999 terrorist financing convention more closely and criminalized the provisions of resources with the knowledge or intent that they will be used to commit an act of terrorism.86 also, the inability of the global community to grapple with these intractable problems consistently and predictably. under the responsibility to protect, whether at the international, regional, or domestic level, efforts to advance the responsibility to protect through non-state armed groups should be seen as "a new normal." it is also primarily concerned with special applications of the theories of humanitarian intervention as well as the responsibility to protect under international law. on this basis, the designation of many non-state armed groups as "terrorists, bandits or militias" when they could be helpful in counterterrorism measures should be prohibited. they may be considered support or valuable tools in implementing global counterterrorism obligations. given the stigmatization associated with the nonstate armed groups and the intricacies and complexities of their operations, the choice of appropriate regulatory processes or measures should be prescriptive, participatory, and or obligatory. however, the starting point is to determine how best to secure effective implementation of the commitments at all levels. after all, translating international obligations into municipal law by the government is the first compliance test. despite several legislations on the responsibility to protect, the reality on the ground is appalling. there is a need to strengthen the efforts of states and the global community on the responsibility to protect through non-state armed groups. in order to fill the gap between the law and the reality, there is a compelling need to develop a practical legal framework that will ensure 86 see international convention for the suppression of the financing of terrorism 1999, article 2. 149 | indonesian journal of law and society strict adherence to the rules of international humanitarian law by the nonstate armed groups. it is essential when promoting the principle of complementarity, or the notion that non-state armed groups should take responsibility for their actions. viii. developing a legal framework to comply with international humanitarian law the global community should develop robust, effective, and enforceable legal instruments to drive the new trend of participation by non-state armed groups in conflict management and resolutions. it is to effectively address the challenges posed by the operations of the non-state armed groups because they are not parties to treaties either on international humanitarian law, international human rights law, or international criminal law. these developments demonstrate that statutes should be interpreted within the established framework of the international law of armed conflict.87 interestingly, all non-state armed groups are bound by article 3 of the geneva convention88 which requires each party to respect humanitarian obligations, as well as many other rules of international humanitarian law that have the status of customary international law.89 also, by way of extension, the above position was replicated in additional protocol ii of 1977, wherein non-state armed groups are in occupation of a particular territory, as the case may be.90 however, the existing legal frameworks for holding non-state armed groups accountable for violations of humanitarian norms are less developed than those applicable to states. however, the idea of a new legal framework is predicated on the fact that non-state armed groups are not obligated to the several treaty-based reporting, monitoring, and verification 87 see article 8 of the 1998 rome statute. 88 see common article 3 of the geneva convention 1949. 89 jean-marie henckaerts & louise doswald-beck, customary international humanitarian law volume i: rules (new york: cambridge university press, 2005). 90 see additional protocol ii of 1977. 150 | promoting responsibility to protect through non-state armed groups mechanisms for states.91 furthermore, developing a practical legal framework ensures non-state armed groups comply with international humanitarian law, international human rights law, and international criminal law. it should be an enormous concern given that some non-state armed groups are often used as ad-hoc un security council sanctions regime, which sometimes assists in curbing abuses in international law. thus, there is a need to bring regulations and compliance in harmony since the legal frameworks applicable to the operations of non-state armed groups are either inadequate or not proactively committed to the enforcement of international humanitarian law. in this respect, the question then should be, what should be the practical measure to ensure that non-state armed groups increase their respect for humanitarian norms? in response to the above question, the paper suggests that there should be a mutual agreement between the non-state armed groups and the states, which is in line with article 3 of the geneva convention.92 with this agreement, non-state armed groups can effectively carry out preventive activities or facilitate the task of relief personnel in an armed conflict situation93 with strict adherence to the rules of international humanitarian law. also, it is worth noting that the military necessity argument can be invoked in exceptional circumstances with the agreement between the parties. it regulates and ensures that all parties to the armed conflicts respect international humanitarian law, international human rights law, and international criminal laws. for instance, about accountability, it should be noted that the agreement above has helped to ground war crimes liability in the international criminal tribunal for the former yugoslavia (icty).94secondly, while these and other arguments are undoubtedly compelling and deserve serious consideration, non-state armed groups may make a unilateral commitment to respect humanitarian norms, which may 91 p bongard & j somer, “monitoring armed non-state actor compliance with humanitarian norms: a look at international mechanisms and geneva call deed of commitment” (2011) 93 international review of red cross at 673. 92 see article 3 of the geneva convention 1949. 93 see commentary to additional protocol 1 of 1977. 94 prosecutor v stanislav galic (trial judgement and opinion), 2003 international criminal tribunal for the former yugoslavia (icty) para 95. 151 | indonesian journal of law and society not be formally binding.95 indeed, this may be one for non-state armed groups to promote and ensure respect for international humanitarian law and international human rights law. thirdly, different concerns are raised and continue to be expressed on developing effective legal frameworks. they will ensure compliance with the rules of international humanitarian law by non-state armed groups. another notable suggestion has a formal agreement in the form of a deed of commitment. based on the plain language of the deed of commitment, non-state armed groups are committed to humanitarian norms and are responsible for their actions.96 while this deed of commitment seems straightforward, these deeds are monitored at three different levels: non-state, armed group reporting its activities, third-party monitoring, and field missions by geneva call, respectively, that include verifying alleged non-compliance with humanitarian norms.97 while this approach may appear appealing, the reason behind the geneva call is that an engagement with the non-state armed groups can advance compliance with humanitarian norms and protect civilians from the dangers of armed conflicts.98 aside from the above measures, another measure adopted by non-state armed groups is the adoption of internal regulations to control their members' behavior through administering oaths of allegiance, codes of conduct, standing orders, penal codes, and military manuals.99 95 a roberts & s sivakumaran, “hybrid sources of law: armed groups and the creation of international humanitarian law” 37 yale journal of international law at 1, 108, 142-43. 96 see geneva convention, supra note 81. 97 p. bongard & j. somer, supra note 92 at 689. 98 pascal bongard, “engaging armed non-state actors on humanitarian norms: reflections on geneva call’s experience” humanitarian exchange magazine (2013), online: <https://genevacall.org/wp-content/uploads/dlm_uploads/2013/12/art1.pdf> at 9-10. 99 a. roberts & s. sivakumaran, supra note 96 at 133, 51, 438, 442. 152 | promoting responsibility to protect through non-state armed groups ix. conclusion this paper has examined the usefulness of the responsibility to protect through nonstate armed groups. however, engaging non-state armed groups on humanitarian issues does not change the legal status of the global community but rather will serve as a complementary effort geared toward limiting the humanitarian catastrophes and reducing the violence perpetrated by armed actors in armed violence orchestrated for one reason or the other. with positive sensitization, the public must understand that the global community alone or through its agents cannot single-handedly curb the prevailing high crime. at this juncture, having an in-depth analytical and objective view of the complementary efforts of non-state armed groups will be capable of showcasing the fundamental relevance of non-state armed groups in areas of ensuring safe, regular access to noncombatants. scrutinizing conventions, treaties, and legislation becomes a key to achieving all efforts made to advance the responsibility to protect through non-state armed groups. therefore, considering the current humanitarian catastrophes around the globe, non-state armed groups in the responsibility to protect serve as an improvement in humanitarian intervention. in light of the relevance of non-state armed groups to international law, international humanitarian law, and the global community, a review of the existing regulations, manuals, and rules will mark a progression and improvement from the euphoria of the old world order to the cautiously pragmatic approach to the significant role of nonstate armed groups under the collective humanitarian intervention. acknowledgment the authors would like to thank prof. balarabe haruna for his guidance and valuable comments on the earlier draft of this paper. competing interests the authors declared that they have no conflict of interests. 153 | indonesian journal of law and society references a roberts & s sivakumaran, “hybrid sources of law: armed groups and the creation of international humanitarian law” 37 yale journal of international law. ———, “law-making by non-state actors: engaging armed groups in the creation of international humanitarian law” (2012) 37 journal of international law 1. a rougier, “la theoriede ‘l’ intervention d’humanite”, 3 (rgdip, 1910). aidan hehir, “the responsibility to protect and international law” in philip cunliffe, ed, critical perspectives on the responsibility to protect interrogating theory & practice (new york: taylor & francis, 2011). andrew clapham & paola gaeta, eds, “the law applicable to peace operations” in the oxford handbook of international law in armed conflict (oxford: oxford university press, 2014). bain william, “responsibility and obligation in the ‘responsibility to protect” (2010) 36:51 review of international studies 25–46. boisson de chazourmes, laurence boisson, & luigi condorelli, "common article 1 of the geneva conventions re-visited: protecting collective interests" (2000) 82:837 international review of red cross 67–87. clara portela, humanitarian intervention, nato and international law: can the institution of humanitarian intervention justify unauthorized action?, research report, by clara portela, research report 00.4 (berlin: berlin information-center for transatlantic security (bits), 2000). claudia hofmann, engaging armed actors in conflict mediation: consolidating government and non-governmental approaches (chatham house research papers april 2016). c hofmann & u scneckener, “how to engage armed groups reviewing options and strategies for third parties” (2011) 29:4 security apparatuses in fragile and authoritarian states 254–59. 154 | promoting responsibility to protect through non-state armed groups c stahn, “responsibility to protect: political rhetoric or emerging legal norm?” (2007) 101 american journal of international law 99–120. d d caron, “‘the legitimacy of the collective authority of the security council’” (1993) 87:552 american journal of international law, online: <https://lawcat.berkeley.edu/record/1114681/files/fulltext.pdf>. fransisco de vitoria, classic of international law (washington dc: carnegie institution, 1917). geneva call, "deed of commitment for adherence to a total ban on anti-personnel mines and cooperation in mine action launched in 2000", geneva call, online: <http://www.genevacall.org/how-wework/deed-of-commitment/>. henry wager halleck, international law, or, rules regulating the intercourse of states in peace and war (kegan paul, trench, trübner, 1961). h peter, “intervening in the name of humanity: responsibility to protect and the power of ideas” (2012) 17:1 journal of conflict and security law 49–79. hofmann, c, “emerging non-state armed groups in humanitarian action” (2006) 13:3 international peacekeeping journal 396–409. hugo grotius, dejure belliac pacis libritires, classics of international law 3 (keslytans: oxford clarendon press, 1925). human rights watch, "war in iraq: not a humanitarian intervention," human rights watch (hrw) (2004), online: <https://www.hrw.org/ news/2004/01/25/war-iraq-not-humanitarian-intervention>. i brownlie, international law and the use of force by states (oxford: clarendon press, 1963). j moore, humanitarian law in action within africa (oxford university press, 1961). jean-marie henckaerts & louise doswald-beck, customary international humanitarian law volume i: rules (new york: cambridge university press, 2005). 155 | indonesian journal of law and society jk kleffner, “the applicability of international humanitarian law to organized armed groups” (2011) 93:882 international review of red cross 443–461. jn pomeroy, lecture on international law in time of peace (cambridge, massachusetts: riverside press, 1886). joachim von elbe, “the evolution of the concept of the just war in international law” (1939) 33:4 american journal of international law 655–688. john eppstein, the catholic tradition of the law of nations (london: burns dates & wash bourne, 1935). jost delbruck, “a fresh look at humanitarian intervention under the authority of the united nations” (1993) 67 indiana law journal. l francis & & l oppenheim, international law (new york: longmans green and co, 1905). m kaldor, human security: reflections on globalization and intervention (cambridge: polity press, 2007). marc dubois, "protection: the new humanitarian fig-leaf," groupe urd (2009), online: <https://www.urd.org/en/review-hem/protection-thenew-humanitarian-fig-leaf/>. marten zwanenburg, “’the law of occupation re-visited: the beginning of an occupation” in yearbook of international humanitarian law (2007). michael schmitt, “classification of cyberconflict” (2012) 17':2 journal of conflict and security law 245–260. nancy d arnison, “international law and non-intervention: when do humanitarian concerns supersede sovereignty?” (1993) 17 fletcher forum world act. p bongard & j somer, “monitoring armed non-state actor compliance with humanitarian norms: a look at international mechanisms and geneva call deed of commitment” (2011) 93 international review of red cross. 156 | promoting responsibility to protect through non-state armed groups pascal bongard, “engaging armed non-state actors on humanitarian norms: reflections on geneva call’s experience” humanitarian exchange magazine (july 2013), online: <https://genevacall.org/wpcontent/uploads/dlm_uploads/2013/12/art-1.pdf>. rh cooper & jv kohler, responsibility to protect, the global moral combat for the 21st century (basingstoke palgrave macmillan, 2010). s sivakumaran, the law of noninternational armed conflict (oxford: oxford university press, 2012). unhcr, united nations high commissioner for refugees mid-year trends report 2015, unhcr (unhcr, 2015). united nations, report of the international commission of inquiry on darfur to the united nations secretary-genera, by united nations (geneva, 2005). united nations, "secretary-general presents report 'in larger freedom' to general assembly, outlining ambitious plan for united nations reform," united nations (2005), online: <https://www.un.org/press/ en/2005/ga10334.doc.htm>. veronique dudouet, mediating peace with proscribed armed groups, by veronique dudouet, special report 239 (washington dc: united states institute of peace, 2010). william oke manning, commentaries on the law of nations, sheldon amos, ed (london, 1875). wd werwey, “humanitarian intervention under international law” (1985) 32:3 netherlands international law review 357–418. we hall, treaties on international law (oxford: clarendon press, 1884). wv, harcourt, letters by historicus on some questions of international law (london: macmillan, 1863). microsoft word 24262-edit.doc indonesian journal of law and society (2021) 2:2 197-234 issn 2722-4074 | https://doi.org/10.19184/ijls.v2i2.24262 published by the university of jember, indonesia available online 30 september 2021 _____________________________ * corresponding authors’ e-mail: dlfshamila@gmail.com corporate social responsibility and mncs: an appraisal from investment treaty law perspective shamila dawood* university of colombo, sri lanka abstract: recent investment treaties recognize corporate social responsibility (csr) as a mechanism for regulating corporate behavior concerning the protection and promotion of human rights, social and environmental standards. these treaties often include a universally recognized soft law version of csr developed by the international labor organization (ilo) and the organization for economic co-operation and development (oecd), considered prominent sources of csr voluntary standards. this study analyzed significant advances in including such voluntary standards in investment treaty law, which led to implementing globally agreed norms regarding sustainable development into action. in addition to the inclusion of csr standards in legally binding documents, this study argued that the practical issues involved in implementing the csr standards should be addressed from the perspective of capitaldependent developing countries. to this end, this study adopted the due diligence test to apply csr standards in cross-border investments better. for this purpose, theoretical analysis that combined descriptive and analytical approaches based on the available primary and secondary sources best suited current research. the study showed that applying csr standards in capitaldependent developing countries was only possible when corporate, home state, and the host government took appropriate actions at the policy level. it concluded that such additional measures were needed to effectively implement csr standards emphasizing prevention was better than cure and ensuring the appropriate due diligence process by the relevant parties. keywords: corporate social responsibility, investment laws, developing countries. copyright © 2021 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 10/05/2021 reviewed: 11/05/2021 revised: 13/08/2021 accepted: 19/09/2021 how to cite: dawood, shamila, “corporate social responsibility and mncs: an appraisal from investment treaty law perspective” (2021) 2:2 indonesian journal of law and society 197-234, online: <https://doi.org/ 10.19184/ijls.v2i2.24262>. 198 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective i. introduction mncs are the main actors in foreign direct investment. they can influence the future, drive innovation, develop technology, uphold corporate social responsibility (csr), and reshape policy to suit their priorities and capabilities.1 in addition, csr connects sustainability and development. for instance, the 2030 agenda is a powerful framework to encourage businesses to implement csr.2 in terms of foreign direct investment, csr lays down procedures for mncs to follow and provides guidelines to be followed by host states, home states, and civil society, in line with sustainable development. at the same time, strong wording of the csr clause in an investment treaty and breach of such standard may increase liability. dubin elaborates on the direct and indirect versions of csr in investment agreements and argues that although direct csr clauses are ambiguous, they are useful to the host country to use when resolving conflict with foreign investors.3 for developing countries, foreign investment is a significant source of economic growth. it is unlikely to go against mncs' initiatives or bring in unfriendly foreign investment laws. consequently, the object of the csr clause should not only be considered a defensive mechanism but also to ensure best practice in doing business– more precisely to ensure prevention is better than cure. in this case, the implementation is significant, and it is the overall effort of the host state, home state, and mncs. then, this study provides a 1 unctad, world investment report 2017: investment and the digital economy (geneva, 2017); world bank, world development report 2017: governance and the law (washington, 2017); andrew dearing, sustainable innovation: drivers and barriers (geneva: oecd, 2000). 2 most csr standards are developed by non-state actors such as the united nations, international labor organization (ilo), and oecd. many mncs, mnes, and tncs have pledged to adopt the voluntary codes developed by international organizations. many have revised their internal policies to comply with the principles of these codes. see generally sean d murphy, “taking multinational corporate codes of conduct to the next level” (2005) 43:2 columbia journal of transnational law 1-25. 3 laurence dubin, “corporate social responsibility clauses in investment treaties – investment treaty news” (2018) investment treaty news, online: <https://www. iisd.org/itn/en/2018/12/21/corporate-social-responsibility-clauses-in-investmenttreaties-laurence-dubin/>. 199 | indonesian journal of law and society comprehensive analysis of csr obligation as a mandatory requirement to adhere to responsible business practices and the effective roles of host, home state, and mncs in ensuring human rights and environment protection from the point of capital dependent developing countries. accordingly, it presents a series of non-binding instruments universally recognized as voluntary csr standards,4 and argues, to a certain extent, the voluntary csr standards influence investment communities and impact development in diverse ways, producing an array of possibilities and challenges.5 the initial version of the csr standards was primarily concerned with labor issues; however, csr standards now include social, environmental, and human rights aspects to protect against unhealthy investment practices. nevertheless, voluntary mechanisms are not as beneficial to capital-dependent developing countries as touted. the promotion of responsible investment depends on how far companies pledge to implement voluntary standards in binding agreements. few countries managed to inculcate such laws in domestic foreign investment law, bits, and investment contracts instead of just internal company policies. this study aimed to analyze the csr clause in investment treaties and its practical application in capital-dependent states. the first part analyzes and compares the current csr voluntary standards developed by international institutions. the second part analyzes the role of mnc as a critical player in foreign investment in improving human rights values, social and environmental protection, with the following position of capital-dependent developing host countries in regulating the behavior of mncs. finally, the study examines the implementation of csr standards embedded in foreign investment laws. it adopts a due diligence test and analyzes from the corporate, host state, and home state perspectives. 4 iawg, promoting standards for responsible investment in value chains (2011). united nations, the guiding principles on business and human rights: implementing the united nations “protect, respect and remedy” framework (geneva: publishing service, 2011). 5 ibid. 200 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective ii. methods given the nature of the research, an in-depth analysis covering the laws and attitudes of the key actors of foreign investment was required, namely, the host state, home state, and mncs. for this purpose, theoretical analysis that combined descriptive and analytical approaches based on the available primary and secondary sources best suited current research. the data was collected through an extensive literature survey, library research, and internet search. while emphasizing the overall efforts of actors in preventing human rights and environmental impacts, the author used comparative legal analysis to recommend the effective implementation of csr standards as a mandatory requirement. to this end, the author relied on soft laws, investment treaties between countries, statutes, reports, databases, and various government and non-government documents. iii. an overview of csr voluntary standards the concept of csr emerged to regulate the behavior of companies by considering the social, human rights, and environmental aspects of development in their ethics or codes of conduct and, ideally, to make legally binding commitments. christian aid defines csr as ‘an entirely voluntary, corporate-driven initiative to promote self-regulation as a substitute for regulation at either the national or international level.'6 though companies form their business ethics, the concept of csr has come under broad and intense study in recent years due to the increased awareness of sustainable development norms. in 1980, the un brought out the international code of conduct on transnational corporations (unctc),7 but it was never approved.8 the unctc covered a range of 6 christian aid, “behind the mask: the real face of corporate social responsibility | eldis," online: <https://www.eldis.org/document/a14595>. 7 united nations commission on transnational corporations, “united nations commission on transnational corporations: report of the secretariat on the outstanding issues in the draft code of conduct on transnational corporations” (1984) 23:3 international legal materials 602-625. un commission on transnational corporations, commission on transnational corporations: report on the special session e/1983/17/rev.1 (new york, 1983). 8 christian aid, supra note 6. 201 | indonesian journal of law and society mnc duties in the host state, such as respect for national sovereignty, adherence to economic and development goals, technology transfer, consumer protection, environmental protection, and disclosure of information.9 the 1992 earth summit in rio de janeiro explicitly endorsed voluntary approaches and considered modern csr's birth.10 csr is now recognized as a universal principle since it is embedded in international declarations and agreements. the ilo's tripartite declaration of principles concerning multinational enterprises and social policy (ilo mne declaration)11 and the oecd’s guidelines for multinational enterprises (oecd guidelines)12 are the two most prominent sources of csr standards. the ilo mne declaration is based on a tripartite consensus elaborated and adopted by governments, employers, and workers worldwide. the declaration encourages multinational enterprises' positive contribution to economic and social progress, believing that mnes can play an essential part by efficiently utilizing capital, technology, and labor.13 it includes parent companies and local entities. it sets out voluntary principles that all the parties should adhere to on general issues and specific issues related to 9 united nations commission on transnational corporations, supra note 6. 10 christian aid, supra note 6. christian aid, behind the mask the real face of corporate social responsibility (christian aid, 2004); judith richter, codes in context: tnc regulation in an era of dialogues and partnership (2002). 11 international labor organization (ilo), tripartite declaration of principles concerning multinational enterprises and social policy (geneva: international labor organization, 2017). the ilo mne declaration was adopted by the governing body of the ilo at its 204th session in 1977 and amended in 2000, 2006, and 2017. 12 oecd, oecd guidelines for multinational enterprises (paris: oecd publishing, 2008); international organization for standardization (iso), contributing to the un sustainable development goals with iso standards (geneva: international organization for standardization, 2018); united nations, guide to the global compact: a practical understanding of the vision and nine principles (united nations, 2003). 13 the ilo mne declaration has its definition for mnes besides the standard legal definition. under the declaration, mnes include enterprises, whether wholly or partially state-owned or privately owned, that own or control production, distribution, service, or other facilities outside the country in which they are based (ilo mne declaration [1]-[3], [6]). 202 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective employment, working conditions, and industrial relations. the declaration also includes host state and home state responsibilities. however, the declaration does not consider the broader aspects of sustainable development that mnes can adhere or promote during their commercial presence in host countries. most of the csr standards embodied in the ilo mne declaration relate to labor issues, while the oecd guidelines regulate the overall behavior of mnes operating abroad. thus, the csr presented in the oecd guidelines seems to be a comprehensive version of voluntary standards. however, most investment treaties do not provide a detailed inclusion of such standards, limiting workers' rights. this is because investors selectively adhere to voluntary standards that suit their business interests. therefore, to give legal validity to this expanded version of csr, it should be referred to in domestic investment law, investment treaties, and contracts. the oecd guidelines assert that mnes play a vital role in the world economy and contribute to economic, social, and environmental progress through foreign investment initiatives.14 the guidelines also suggest that mnes can minimize and resolve difficulties arising in the course of business operations. the guidelines avoid setting a precise definition for mnes and are addressed to all entities within the structure of mnes.15 they set out voluntary principles, as do the ilo mne declaration, oecd declaration on international investment, multinational enterprises, and other instruments. accordingly, the oecd guidelines cover a wide range of corporate behavior such as employment and industrial relations, the environment, combating bribery, consumer interests, science and technology, competition, and taxation.16 the csr standards addressed in the general policies section of the oecd guidelines comprise special 14 oecd, supra note 12. 15 (ilo), supra note 11. 16 oecd, supra note 12. as of may 2010, the governments of 42 oecd and nonoecd countries adhere to the oecd declaration on international investment and multinational enterprises and related decisions. in addition, the oecd guidelines were revised in 2011 to provide recommendations for the promotion of responsible global business conduct and are considered a leading international instrument on csr. 203 | indonesian journal of law and society recommendations on mne behavior, ensuring that mnes' activities comply with the sdgs.17 this is the best model to ensure the responsive behavior of mnes to relevant investment treaties. significantly, the oecd guidelines provide an implementing mechanism that encourages mnes to adopt voluntary standards meaningfully. accordingly, national contact points are to be set up by the government of each oecd member or non-member state to promote responsible business conduct. further, national contact points provide a mediation and conciliation platform for resolving practical issues of implementing the guidelines and any allegations of non-compliance by companies.18 a growing number of firms have implemented voluntary codes of corporate conduct, market initiatives, or self-regulation that include commitments to observe ethical values in environmental, consumer protection, social, and labor standards. except in rare situations, voluntary csr statements or market forces alone are insufficient to provide accountability, and binding regulations increase to ensure mnes' seriously involved in promoting meaningful development.19 this requires acknowledging csr through an appropriate legal framework like bits rather than limiting csr to a selfregulating mechanism. iv. the mnc as a prominent actor: an assessment it is widely accepted that mncs are engines of economic growth that can enhance human rights values and environmental protection in capital receiving developing countries.20 mncs are among the world's largest firms, and their industrial operations differ according to their specialization 17 ibid. 18 oecd, annual report on the oecd guidelines for multinational enterprises 2017 (2018). in 2017, national contact points closed 34 specific instances and received 28 new specific instances. in some cases, agreements reached among parties included direct remedy to the submitters or changes to a company's operations and policies to mitigate impacts. 19 ichrp, beyond voluntarism: human rights and the developing international legal obligations of companies (versoix, 2002). 20 william h meyer, “human rights and mncs: theory versus quantitative analysis” (1996) 18:2 human rights quarterly 368-397. 204 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective and own and control activities in several countries.21 mncs, also referred to as mnes and tncs, are assessed based on the multi-nationality of their foreign affiliates and subsidiaries; the number of countries in which they operate; total assets, revenues or profits; international nature of their employees, stockholders, owners, and managers; and the oversees nature of their operations.22 they have the most direct influence on the structure and effects of fdi.23 the diffusion of technology through fdi is one of the factors supporting the classical theory of investment, which holds that foreign investment is wholly beneficial to develop economies. this theory focuses on the liberalization of the economy in developing countries. the theory behind the neo-liberal policies of powerful international organizations like the world bank and the international monetary fund.24 many have argued for a positive view of mncs as assisting better environmental management in developing countries by exporting modern and less polluting technology.25 governments and environmental groups have recognized the role of business in promoting environmental protection as primary partners for long-term environmental solutions, even though it is the primary polluter.26 in terms of foreign investment, large and powerful mncs are more capable than some governments of developing countries in environmental management given their access to capital, research, and development capacity, market influence, ability to create and disseminate knowledge and products, and ability to engage in consensus-building dialogue at the domestic and international level.27 the global investment competitiveness 21 jeffrey a hart & joan edelman spero, the politics of international economic relations, 5th edition ed (london: routledge, 1997); john h dunning & sarianna m lundan, multinational enterprises, and the global economy (cheltenham: edward elgar, 2008). 22 hart & spero, supra note 21. 23 united nations conference on trade and development (unctad), making fdi work for sustainable development (geneva: unctad, 2004). 24 m sornarajah, the international law on foreign investment (cambridge university press, 2021). 25 david hunter, james salzman & durwood zaelke, international environmental law and policy (thomson reuters foundation/ foundation press, 2011) at 1386. 26 ibid at 1386. 27 ibid at 1386. 205 | indonesian journal of law and society report 2017/2018 stressed the significance of mncs in meeting the objectives of sustainable development.28 the report highlighted that “foreign investors are becoming increasingly prominent players in delivering global public goods, addressing climate change, improving labor conditions, setting global industry standards and delivering infrastructure to local communities."29 the environmental management strategies of mncs may also influence the host government’s and local businesses' environmental management. for instance, leading companies routinely publish environmental data in annual reports, conduct environmental audits of overseas facilities, seek third-party certification of their environmental management systems and go beyond mere compliance with regulations.30 the best practices of mncs, such as management of skills, new ideas, and technological modernization, may guide local firms and personnel towards better environmental management and may influence the government to make environmental reforms. shao identified such two possible aspects of mncs in developing countries: mncs tend to improve resource efficiency to abate environmental pollution problems of host states' domestic enterprises, and they support the development of host countries’ environmental protection technology through knowledge diffusion, technology spillover, transfer of funds and other actions.31 there are criticisms of the negative behavior of mncs in developing countries, particularly with environmental management and human rights abuses. nevertheless, mncs are the most prominent actors in foreign investment and are described as engines of development in developing countries. however, it is also generally accepted that these corporations can 28 global investment competitiveness report 2017/2018: foreign investor perspectives and policy implications (world bank group, 2018). 29 ibid at 1. 30 ibid at 4-5. 31 yanmin shao, “does fdi affect carbon intensity? new evidence from dynamic panel analysis” (2018) 10:1 international journal of climate change strategies and management 27-42 at 29. 206 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective also harm the host states they operate.32 human rights abuses can be categorized as either soft or hard violations of human rights. soft violations include poor employment conditions and environmental degradations, while complex violations include child labor, murder, torture, and conspiring with an oppressive regime.33 rubin stated: even in the national arena, the corporation has sometimes exacerbated fears. the aggregation of economic power that the device permits has often been viewed as powerful and not always responsive to popular concepts of the ‘best interest’ of the general public.34 the report on ‘development for all, or a privileged few? business & human rights in southeast asia’ indicates the alarming patterns of human rights violations in southeast asia by foreign companies, which states that there were 289 human rights violations over the past ten years.35 the report also indicates that this will weaken laws to reduce pollution, ensure safe workplaces, and protect indigenous rights.36 mncs' profit-earning motives neglect the other aspects of development such as poverty, inequality, and unemployment alleviation – these were largely unnoticed by mncs.37 further to, in some cases, mncs fail to take adequate measures to clean up environmental effects caused by their business even when the government requests they clean up.38 stiglitz accused mncs of lousy behavior and stated: 32 m sornarajah, the settlement of foreign investment disputes (kluwer law international, 2000) at 361. 33 j m chanin, “the regulatory grass is greener: a comparative analysis of the alien tort claims act and european union’s green paper on corporate social responsibility” (2005) 12:2 indiana journal of global legal studies at 747. 34 seymour j rubin, “transnational corporations and international codes of conduct: a study of the relationship between international legal cooperation and economic development” (1995) 10:4 american university international law review. at 1278. 35 irene pietropaoli & bobbie sta maria, briefing: development for all, or a privileged few? business and human rights in southeast asia (business and human resource centre, 2017) at 4. 36 ibid. 37 k aswathappa, international business (mcgraw hill education, 2015). 38 joseph e stiglitz, “multinational corporations: balancing rights and responsibilities” (2017) 101 proceedings of the asil annual meeting at 15. 207 | indonesian journal of law and society in some cases, when the adverse consequences of their actions are criticized, the mncs plead that they are simply following the law: but such defenses are disingenuous, for they often work hard to make sure that the law is the law that suits them well and maximizes their profits.39 powerful mncs also take advantage of limited liability to avoid excessive burdens.40 the characteristics and nature of mncs and those of host states and home states make it very easy to achieve their objectives. for instance, the size and power of mncs allow them to create a favorable environment in capital dependent developing countries;41 influence of their home government to get better terms in international treaties;42 lack of administrative capacities and technical experts in host states work in favor of mncs;43 and sometimes mncs, and the governments of the advanced industrial countries who represent their interests, take advantage of power and information asymmetries.44 for these reasons, capital receiving developing countries are usually unable to regulate or make demands of mncs, including that they observe development goals or comply with sustainable development norms. in most instances, developing countries agree to standard terms on investment protection in legally binding commitments and agreements. this influences 39 see further discussion on why foreign multinationals escape from environmental responsibility, ibid at 16. 40 ibid at 16. 41 as of december 2005, the retail giant wal-mart had 1.3 million employees and earned usd191.4 billion in revenue—more than the combined gdp of subsaharan africa. petrochina's market value is larger than the gdp of south africa, a g-20 country. the profits of russian oil company gazprom equal the gdp of jordan. these corporations are not only rich but politically powerful. if host governments decide to tax or regulate them in unfavorable ways, they can threaten to relocate—there is always another country that entices them with several incentives. see aswathappa, supra note 37. 42 for example, see stiglitz, supra note 38. at 16-8 cites a us drug company successfully pressuring the us government to pressure a foreign country to issue a compulsory license, even when the issuance is within the framework of the wto. 43 ibid at 16-19. 44 the us government has bargained with dozens of countries on behalf of corporations. as a result, it knows likely and sensitive clauses or provisions that can significantly affect corporations, either benefits or costs. see ibid. 208 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective mncs to choose developing countries for operations because their governments readily agree to such terms because of mncs' enormous size and power. thus, the behavior of mncs is appreciated and criticized throughout the literature on environmental conservation and uphold human rights values. nonetheless, the significance of mncs for the promotion of sustainable development cannot be underestimated, as they are capable of upholding best practices and helping to implement laws in developing countries. thus, they need to be regulated to derive the total benefit from foreign investment initiatives. a. host state in regulating mnc’s conduct as previously mentioned, most mncs are powerful corporations that developing countries are unwilling or unable to regulate due to a lack of resources and other support.45 the domestic legal system may be weak and largely unregulated, influencing mncs to choose that location.46 this minimizes the strict rules that mncs are otherwise obliged to follow in their home territories. conversely, the inefficiency of domestic laws and inadequate resources, expertise, and technology of developing countries may impose disadvantageous conditions for mncs.47 this influences developing countries to create favorable and stable legal and environmental frameworks to attract fdi.48 nevertheless, developing countries do not fail to recognize the negative impacts of mncs and agree that their behavior should be internationally regulated to secure the interests of developing countries. for instance, some developing countries addressed the 45 see murphy, supra note 2 389. 46 sarah louise joseph, “an overview of the human rights accountability of multinational enterprises” in liability of multinational corporations under international law (kluwer law international, 2001) at 78. 47 robert mccorquodale, “waving not drowning: kiobel outside the united states” (2013) 107:4 the american journal of international law at 846. 48 s bottomley & d kinley, “corporations and human rights’” in commercial law and human rights (ashgate, 2002) at 60. 209 | indonesian journal of law and society limitations of host governments in regulating mncs’ conduct because of their enormous power and worldwide operations.49 to a certain extent, a few host governments have imposed measures to control unfriendly investment projects through their local laws and by including provisions related to non-economic objectives in their respective bits.50 however, these mainly cover entry-level regulation of foreign investment. regulating the behavior of mncs primarily relates to the operational stage of investment projects, and their behaviors are monitored annually throughout an investment contract. capital-dependent developing countries may not be able to monitor or follow up mncs due to a lack of courage, resources, and experts and the power and size of mncs. regarding the inability to control mncs, every country regulates people and property within its territory—the 'territorial principle.' additionally, the host government has an essential role in creating a 'level playing field' to regulate mnc behavior. it should ensure provisions regulating mncs are included in its laws, treaties, and binding contracts.51 host governments must be able to adopt mechanisms to monitor and enforce social and environmental compliance. generally, it would only be possible to regulate mncs' behavior through legally binding instruments in developing countries. this is because most 49 communication from china, cuba, india, kenya, pakistan, and zimbabwe (wto doc no wt/wgti/w/152, working group on the relationship between trade and investment, wto, 19 november 2002). 50 see the preamble to the protection of investment act, act no 22 of 2015 (south africa); preamble to the investment promotion act (2016) (namibia); foreign investment act (2014) (cuba) article 20; the pyidaungsu hluttaw law no 40/2016 (myanmar) article 41. 51 see norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, un doc e/cn.4/sub.2/2003/12/rev.2 (2003) article 1. the general obligation provides that states have the primary responsibility to promote, secure the fulfillment of, respect, ensure respect of and protect human rights recognized in international and national law, including ensuring that transnational corporations and other business enterprises respect human rights. likewise, within their respective spheres of activity and influence, transnational corporations and other business enterprises must promote, secure the fulfillment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups. 210 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective codes of conduct, market behavior, or ethics are voluntary mechanisms. the voluntary standard becomes effective when the international community adopts a multilateral treaty on the conduct of mncs in developing countries that acknowledges the responsibilities and obligations of the home state, host state, and mncs. otherwise, governments should adopt binding regulations on mnc conduct at a territorial level to ensure mnc compliance with domestic laws and policies. however, the imposition of ambitious standards on mncs is problematic. firstly, it can be very costly. secondly, effective laws are essential to define the roles and responsibilities of mncs in upholding best practices to promote sustainable development in the capital receiving state. moreover, foreign investors may be reluctant to agree to social, human rights, and environmental commitments where laws are ambiguous, uncertain, or ineffective. thirdly, foreign-owned–corporations have already contributed to wealth creation in developing countries, so the fear exists that material changes to the operations of such corporations may affect the level of income, employment, and general standard of living in the entire country either positively or negatively.52 most developing countries are reluctant to set laws governing mncs, as they need this foreign investment for their economic growth. consequently, capital-dependent developing countries show a constant willingness to attract more fdi through adopting more liberal approaches than competing similar countries. in this climate, bringing in binding regulations on mncs is a pipedream for a single developing country. thus, the binding universal standard must be set internationally or regionally. murphy observed that due to a vacuum of government regulation of mncs in the developing world, these nonstate actors–a form of private regulation–have emerged to deal with the adverse social effects of mnc activity.53 the failure of such attempts by the international and regional community and the individual governments of developing countries demonstrates the need to adopt a universally recognized voluntary code of conduct in binding treaties or agreements, 52 h jaffrey leonard, “multinational corporations and politics in developing countries” (1980) 32:3 world policy at 456. 53 murphy, supra note 2. 211 | indonesian journal of law and society such as bits and investment contracts. this would recognize the accountability of contracting parties to uphold social, human rights, and environmental protections, provide better voluntary codes than mncs' internal policies and produce a more balanced treaty. in addition, this would make mncs accountable for violating voluntary principles, give them responsibilities, and most notably, influence arbitrators' decisions in dispute settlement processes, particularly when deciding the legality of expropriation and associated compensation. b. due diligence test as previously discussed, including comprehensive csr standards in investment treaties is essential to promote foreign investment for sustainable development. csr standards demarcate the responsibilities of all actors in promoting responsible investment in the host country. the implementation of csr standards depends on the due diligence test from a corporate, home, and host government perspective. from the corporate perspective, due diligence is generally understood as investigating the conduct of business to identify and manage commercial risks.54 accordingly, the corporate perspective on due diligence is generally understood as confirming facts, data, and representations involved in a commercial transaction to determine the value, price, and risk of such transactions, including the risk of future litigation.55 according to ruggie, due diligence is a process whereby companies ensure compliance with national laws and manage the risk of human rights harm to avoid it.56 the due diligence test clarifies mncs' duty to 'not harm' while conducting 54 jonathan bonnitcha & robert mccorquodale, “the concept of ‘due diligence’ in the un guiding principles on business and human rights” (2017) 28:3 european journal of international law at 899. 55 olga matin-ortega, “human rights due diligence for corporations: from voluntary standards to hard law at last” (2013) 32:1 netherlands quarterly of human rights at 44, 51; bonnitcha & mccorquodale, supra note 53 at 901. 56 john ruggie, protect, respect and remedy: a framework for business and human rights. report of the special representative of the secretary-general on the issue of human rights and transnational corporations and other business enterprises, human rights council, 8th sess, agenda item 3, un doc a/hrc/8/5 (april 2008). 212 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective business in the host state.57 it is bolstered by companies adopting comprehensive voluntary csr standards. however, these voluntary standards sometimes impose liability when mncs fail to adhere to social, human rights, or environmental commitments. adhering to the due diligence process is increasingly important to implement the oecd guidelines. the oecd's 2017 annual report stated that governments' regulatory directives could present a strong incentive for companies to carry out due diligence. at the same time, domestic level expectations can create challenges for globally operating businesses to meet various international expectations.58 the oecd recently published its due diligence guidance for responsible business conduct, which is relevant to all sectors of the economy.59 from a host state perspective, a due diligence test is a crucial tool for measuring state responsibility for preventing or responding to abuses committed by businesses.60 the test highlights the duties of capitalreceiving states. accordingly, a state must have taken severe or reasonable steps to prevent or respond to abuse by a private actor, including investigating and providing a remedy such as compensation.61 the most significant aspect of due diligence in developing standards is acknowledging how international and state practices can move from voluntary to normative standards.62 for instance, the oecd's work has focused on promoting policy coherence to responsible business conduct in the economic, environmental, and social spheres.63 further, the oecd 57 ‘… the corporate responsibility to respect human rights [means], in essence, to do no harm’ (john ruggie, presentation of report to united nations human rights council, special representative of the secretary-general, geneva, 3 june 2008. 58 oecd, supra note 17 at 10. 59 ibid. 60 oecd, oecd due diligence guidance for responsible business conduct (oecd, 2018). see also matin-ortega, supra note 55.; madeleine conway, “a new duty of care? tort liability from voluntary human rights due diligence in global supply chains” (2015) 40:2 queen’s law journal. at 741-5. 61 (ichrp), supra note 18 at 59. 62 see matin-ortega, supra note 54 at 61. bonnitcha & mccorquodale, supra note 53 at 901. conway, supra note 60. 63 oecd, supra note 17 at 8-9. 213 | indonesian journal of law and society observes that in the context of global challenges concerning climate, poverty, and sustainable development, governments are increasingly committed to designing and implementing a robust policy framework that supports and promotes responsible business conduct.64 without having such mechanisms at the domestic level, it is challenging to ensure mnc behavior that supports responsible business practices. however, the vulnerability of developing countries creates uncertainty that such regulatory directives will be observed by mncs unless adopted universally or regionally. the due diligence test may be extended to the responsibilities of states to third-party conduct.65 this was well explained in aapl v sri lanka, where the tribunal aligned the due diligence test with the roman law concept of taking reasonable steps to avoid harm.66 the tribunal quoted freeman: “due diligence is nothing more nor less than the reasonable measures of prevention which a well-administered government could be expected to exercise under similar circumstances.”67 bonnitcha and mccorquodale started the contrasting view of the tribunal on the due diligence standard, "absolute obligation which guarantees that no damages will be suffered, in the sense that any violation thereof creates a 'strict liability' automatically on behalf of the host state.68 they further argue that states are not strictly liable for transboundary environmental harm under international environmental law but must act diligently.69 this was stated in the draft articles on prevention of transboundary harm from hazardous activities. for example, article 3 states that the state of origin shall take all appropriate measures to prevent significant 64 ibid. 65 bonnitcha & mccorquodale, supra note 53 at 903. 66 asian agricultural products ltd v. republic of sri lanka (icsid case no arb/87/3) final award, 27 june 1990 [75]-[77]. see also ibid. 67 asian agricultural products ltd v. republic of sri lanka (icsid case no arb/87/3) [77]. 68 ibid at 86. bonnitcha & mccorquodale, supra note 54. 69 ibid at 904. see patricia w birnie, alan e boyle’ & catherine redgwell, international law and the environment (oxford university press, 2009) at 217-18; international law commission, draft articles on prevention of transboundary harm from hazardous activities, with commentaries, un doc a/56/10 (2001) article 3. 214 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective transboundary harm or, at any event, minimize the risk thereof. however, to prevent environmental harm from foreign investment, every state has to act on its duty of care by observing the due diligence test to test whether foreign investment is beneficial to the host state's sustainable economic development. moreover, the icj held in pulp mills on the river uruguay that a state's duty to prevent harm is a customary rule with its origin in due diligence.70 the court referred to the corfu channel case71 and cited every state's obligation not to allow its territory knowingly to be used for acts contrary to the rights of other states. further, the court held that: a state is thus obliged to use all the means at its disposal to avoid activities in its territory or any area under its jurisdiction, causing significant damage to the environment of another state. this court has established that this obligation 'is now part of the corpus of international law relating to the environment.72 thus, home states have a responsibility to abide by the international law relating to the environment and a duty to prevent mnc activities that harm the environment or cause human rights violations in host states. states should adopt the necessary measures to protect the environment, and failure to act may make a state liable based on the due diligence test. it ensures the mncs, host states, and home states adopt and implement the necessary measures to protect society, the environment, and human rights, supporting sustainable development.73 70 pulp mills on the river uruguay (argentina v uruguay) (judgment) (icj, general list no 135, 20 april 2010) [101] <http://www.worldcourts.com/icj/eng/decisions/ 2010.04.20_pulp_mills.htm> (‘pulp mills case’). 71 corfu channel case (uk v albania) (merits) [1949] icj rep 4, 22. 72 pulp mills case [101]. 73 for instance, john ruggie used due diligence in its broader sense about respect for human rights: 'a comprehensive, proactive attempt to uncover human rights risks, actual and potential, over the entire life cycle of a project or business activity, to avoid and mitigate those risks' (report of the special representative of the secretary-general on the issue of human rights and transnational corporations and other business enterprises, un doc a/hrc/11/13 (22 april 2009) at 71. see radu mares, “a gap in the corporate responsibility to respect human rights” (2010) 36:3 monash university law review at 33. 215 | indonesian journal of law and society c. legalization of csr standards in most cases, voluntarism is not working for developing countries, as their laws are too fragile to monitor the behavior of powerful mncs, and, often, powerful commercial interests clash with csr standards.74 pendleton described global corporate behavior and stated that resistance to regulation by the corporate world as a whole had left the worst corporate abusers effectively unrestrained and the victims of their actions without adequate means of redress.75 christian aid investigated several voluntary csr standards, particularly in developing countries, and suggested that mncs will not commit to upholding high standards and sustainable development norms, except through legally binding commitments to corporate social accountability. however, it demonstrated that human rights and conservation of the environment could not be a purely voluntary exercise. therefore, it is time to shift from voluntary csr to corporate social accountability with legally binding commitments.76 binding regulations on csr are necessary to curb the negative impacts of mncs' conduct in developing countries, as their laws are weak and poorly enforced. as a result, many institutions and individuals have argued for binding regulations on csr, either through government regulation or by adopting international regulations.77 pendleton quoted beyond voluntarism, which persuades to adopt legally binding international human rights standards for mncs. further it argues that international human rights law must apply to corporations to constrain their power. there needs to be a deterrence principle governing their behavior, and victims need redress.78 voluntary standards are inadequate to accountable mncs for their environmental and human rights violations, particularly in developing countries. for instance, christian aid assessed three powerful companies—shell in nigeria, british american tobacco and coca—cola-generally considered champions of csr and proved that 74 (ichrp), supra note 19. 75 andrew pendleton, “the real face of corporate social responsibility” (2004) 14:3 consumer policy review at 81. 76 christian aid, supra note 6. 77 pendleton, supra note 75. (ichrp), supra note 19. 78 ibid. 216 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective their voluntary commitments are inadequate to ensure good practice or curb extreme corporate transgression. 79 the misconduct of mncs in developing countries reaffirms the urgent need for legally enforceable mechanisms and norms to prevent recurrences.80 in these cases, one can argue that mncs have not only breached their voluntary commitments in favor of their commercial interest but have also breached their professional standards. pendleton observed that in these cases, each company was not accused of contravening domestic laws but of failing to meet its own ethical, voluntary professional standards. therefore, voluntarism can hold them accountable.81 however, the power of mncs needs to be constrained by laws and regulations at the domestic and international levels to curb irreparable damage to the environment and social wellbeing. the international community has attempted to bring in a non-voluntary code to make companies directly liable for their harmful conduct, but this was unsuccessful. on 13 august 2003, the un sub-commission on the promotion and protection of human rights imposed human rights obligations on tncs for their harmful business conduct by approving a draft instrument, the norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights.82 this instrument was a landmark step towards organizing tncs and other business enterprises to uphold human rights values and make them responsible for violating such values during business conduct by adopting non-voluntary standards. the instrument would have made tncs directly responsible for their human rights violations in capitalreceiving states. the instrument encompassed many human rights issues 79 christian aid, supra note 6. 80 communication from china, cuba, india, kenya, pakistan, and zimbabwe (wto doc no wt/wgti/w/152, working group on the relationship between trade and investment, wto, 19 november 2002) at 3. 81 pendleton, supra note 75 at 77. 82 norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, un doc e/cn.4/sub.2/2003/12/rev.2 (2003). 217 | indonesian journal of law and society linked to business practices, such as environmental law, human rights law, humanitarian law and consumer protection.83 its preamble acknowledged: universality, indivisibility, interdependence, and interrelatedness of human rights, including the right to development, entitles every human and all peoples to participate in, contribute to, and enjoy economic, social, cultural, and political development. thus, all human rights and fundamental freedoms can be fully realized.84 the instrument laid down several responsibilities of tncs and other business enterprises, including environmental protection norms. article 14 emphasized that tncs should carry out their business activities under national and international environmental regulations to promote sustainable development.85 initially, the instrument was designed for a non-voluntary framework to create direct obligations for tncs with an enforcement mechanism. however, the un commission on human rights abandoned the instrument due to fierce opposition from various states and the business community, including the international chamber of commerce and the international organization of employers.86 in 2005, this commission gave a mandate for a special representative of the un secretary-general to address business and human rights. the special representative's final report, released in 2011, reasserted the state's duty to protect human rights from abusive business practices while also imposing responsibilities on businesses to respect human rights.87 83 see david weissbrodt & muria kruger, “norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights” (2003) 97:4 american journal of international law at 901. 84 norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, un doc e/cn.4/sub.2/2003/12/rev.2 (2003) preamble. 85 ibid article 14. 86 see weissbrodt & kruger, supra note 82 at 138. on the reasons for the abandonment of the draft norms, see pini p miretski & sascha-dominik bachmann, “the un ‘norms on the responsibility of transnational corporations and other business enterprises with regard to human rights’: a requiem’” (2012) 17:1 deakin law review at 8. 87 weissbrodt & kruger, supra note 83 at 138-139. 218 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective viii. legal coherence and coordination a. national laws of foreign investment: a way forward the inclusion of sustainable development norms in domestic foreign investment laws has been gaining considerable attention to ensure policy coherence and space for the right to regulate. accordingly, some countries leveraged their own comprehensive domestic foreign investment laws to avoid vagueness and provide legal certainty, thereby meeting sustainable development norms encompassing sustainable development language similar to modern/third-generation bits.88 domestic foreign investment laws are evolving to achieve the current needs of development. they coexist with national policies and international standards on sustainable development norms, intuit mncs to uphold voluntary standards seriously.89 for instance, investment law no 72 of 2017 (egypt) article 15 explicitly refers to csr standards, 90 and ensures foreign investors comply with domestic legislation.91 national foreign investment laws further also pledge to refuse investments that lead to environmental degradation. the namibia investment promotion act (2016) details criteria for investment approvals. approval mainly considers contributions to redressing social and economic imbalances,92 contribution to minimizing negative impacts and enhancing environmental benefits.93 domestic foreign investment laws of some developing countries have understood that the significance of encompassing responsible behavior is somewhat impressive. 88 see generally, s. dawood, “regulating responsible business practices for humancentered sds: an analysis of recent developments of international investment legal framework of developing countries’’, proceedings of sliit international conference on advancements in sciences & humanities, 2020. 89 see investment law no 72 of 2017 (egypt); law on investment (2014), law no 67/2014/qh13 (vietnam); law on investment promotion (2016) (laos); the pyidaungsu hluttaw law no 40/2016 (myanmar). 90 investment law no 72 of 2017 (egypt) article 15. 91 law no 5 of 2007 on capital investment (indonesia) arts 15, 16; law on investment promotion (2016) (laos) rt 72; the pyidaungsu hluttaw law no 40/2016 (myanmar) article 65; investment act (2016); investment promotion act, law no 199 of 2016 (namibia) s 18; protection of investment act, act no 22 of 2015 (south africa) s 4. 92 investment promotion act (2016) (namibia) ss 14(b)-(e). 93 ibid at 14(i). 219 | indonesian journal of law and society b. contextualizing csr standards in the bits: a new approach since the failure of attempts to bring internally binding instruments on the conduct of mncs, the recent bits and model bits contain clauses outlining the responsibilities and duties of contracting parties. for instance, agreeing not to lower environmental standards, uphold human rights and workers' rights, and comply with the domestic law are a few significant features of recently concluded bits94 and model bits.95 a considerable number of recent bits include such clauses to ensure environmental commitments made during the entry-level and operational stage of foreign investment are upheld. it generates environmentally better projects aligned with sustainable development norms. besides, a few recent bits include an expanded version of the csr voluntary standard, so it seems actors are gradually recognizing corporate social accountability and imposing specific obligations on foreign investors. however, this is possible only through bits, as attempts to impose standards of good behavior through multilateralism have generally failed to garner political support (the unctc and norms on the responsibilities of transnational corporations and other business enterprises concerning human rights).96 few recent bits recognize the importance of contextualizing csr standards beyond voluntary standards. thus, for example, the recent argentine bits contain a provision with csr, which reaffirms the 94 investment promotion and protection agreement between the government of federal republic of nigeria and the government of republic of singapore (date of signature 4/11/2016) nigeria-singapore bit; agreement between the government of japan and the government of republic of kenya for the promotion and protection of investment (entered into force 24/02/2017) (japankenya bit); agreement between canada and mongolia for the promotion and protection of investments (date of entry into force 24/02/2017) (canada-mongolia bit). 95 czech republic model bit 2016 (date of adoption 28/12/2016); azerbaijan model bit 2016; india model bit 2015 (date of adoption 28/12/2015); serbia model bit 2014; the netherlands model bit 2019 (date of adoption 22/03/2019); norway model bit (draft) 2015. 96 vid prislan & ruben zandvliet, “mainstreaming sustainable development into international investment agreements: what role for labour provisions?” in international investment law and development: bridging the gap (edward elgar publishing, 2015) at 417; norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, un doc e/cn.4/sub.2/2003/12/rev.2 (2003). 220 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective voluntary standards developed by intentional organizations.97 for instance, argentine–qatar bit includes that "investors operating in the territory of the host contracting party should make efforts to voluntarily incorporate internationally recognized standards of csr into their business policies and practices."98 however, some recent bits have expanded coverage of csr standards. for example, the canada–mongolia bit99 and canada–guinea bit100 recognized expanded voluntary standards of csr covering issues such as labor, the environment, human rights, community relations, and anti-corruption measures.101 the brazil–malawi bit102 includes a more comprehensive csr standard, with article 9(1) stating: investors and their investment shall strive to achieve the highest possible level of contribution to the sustainable development of the host party and the local community through the adoption of a high degree of socially responsible practices, based on the voluntary principles and standards set out in this article.103 further, the brazil–malawi bit ensures that investors and their investment shall develop their best efforts to comply with the voluntary principles listed in the article for responsible business conduct and 97 the reciprocal promotion and protection of investments between the argentine republic and the state of qatar (date of signature 06/11/2016) article 12. (argentina–qatar bit); agreement between the argentine republic and japan (date of signature 01/12/2018) article 17 (argentine-japan bit); reciprocal promotion and protection of investments between the argentine republic and the united arab states (date of signature 16/04/2018) article 17 (argentina-uea). 98 (argentina–qatar bit) article 12. 99 (canada–mongolia bit) article 14. 100 agreement for the promotion and reciprocal protection of investments between canada and the republic of guinea (date of entry into force 27/03/2017) art. 16. (canada–guinea bit). 101 reciprocal promotion and protection of investments between the government of kingdom of morocco and the government of the federal republic of nigeria (date of signature 03/12/2016) article 15 (morocco –nigeria bit); investment promotion and protection agreement between the government of the federal republic of nigeria and the government of the republic of singapore (date of signature 04/11/2016) article 11 (nigeria–singapore bit). 102 investment cooperation and facilitation treaty between the republic of brazil and republic of malawi (date of signature 25/06/2015) (brazil–malawi bit). 103 ibid article 9(1). 221 | indonesian journal of law and society consistent with the laws adopted by the host party receiving the investment.104 the brazil–malawi bit lists several voluntary csr standards to be upheld by the investment-receiving states. these csr standards are primarily (a) ensuring sustainable development, (b) stimulating economic, social, and environmental development, (c) ensuring the human rights of those involved in the companies' activities, (d) encouraging local capacity building, (e) refraining from seeking exemptions relating to the environment, health, security, work, or financial incentives, or other issues, and (f) supporting and maintain sound corporate governance principles and good practices, and develop and apply selfregulatory practices.105 the most recent bit concluded between brazilindia106 emphasizes the adaptation of a high degree of socially responsible practices to achieve the highest possible contribution to the sustainable development of the host state. further emphasizes, among others, compliance to voluntary principles and standards for responsible business conduct and consistent with the laws adopted by the host state.107 csr accountability needs to be ensured within the relevant local legal framework. as previously discussed, developing countries’ lack of resources and technical expertise poses difficulties in regulating mncs in sustainable development and internationally adopted codes of conduct. adherence to expanded csr standards could promote socially responsible mnc behavior and prevent harm to the environment and social wellbeing of the developing world. however, individual companies and enterprises should also be encouraged to draft their investment strategies that comply with rbp and responsible investments. a few international organizations encourage mncs to comply with social and environmental norms and ensure accountability and partnership. for example, the un-supported 104 brazil–malawi bit article 9(2). 105 brazil–malawi bit article 9(2)(a)-(l). 106 investment cooperation and facilitation treaty between the republic of brazil and the republic of india (date of signature 25/01/2020) (brazil-india bit). 107 brazil-india bit, article 22. 222 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective pri provides steps for crafting investment strategies, particularly for asset owners (see below figure 1).108 figure 1: crafting an investment strategy109 the implementation guidance strategies embodied in these five steps should be followed conscientiously by individual enterprises as a selfregulation mechanism in compliance with internationally recognized voluntary standards.110 the developing world agrees that mncs and other business enterprises are responsible for respecting human rights, protecting the environment, and promoting sustainable development.111 the efficacy 108 mark kolmar, asset owner strategy guide: how to craft an investment strategy (pri, 2018). 109 ibid at 7. 110 ibid. 111 see generally on tncs and human rights, contribution of the united nations system as a whole to the advancement of the business and human rights agenda and the dissemination and implementation of the guiding principles on business and human rights, un doc a/hrc/res/21/5 (16 october 2012) preamble [5]. council of europe, committee of ministers, declaration of the committee of ministers on the un guiding principles on business and human rights (16 april 2014) [3]. antal berkes, ‘extraterritorial responsibility of the home states for mncs violations of human rights’ in y radi (ed), research handbook on human rights and investment (edward elgar publishing, 2018) 304. draft plan of implementation of the world summit on sustainable development, un doc a/conf.199/l.1 (26 june 2002) [18], [49]. 223 | indonesian journal of law and society of voluntary standards mainly depends on whether mncs regard them as equally important as legally binding commitments. accordingly, mncs' commitment to promoting sustainable development norms depends on adopting, acknowledging, and accepting csr standards as strict internal policies and encouraging business partners, agencies, and supply chains to uphold best business practices in capital-receiving developing countries. contracting parties adopting appropriate new clauses in bits and investment agreements to outline the rights and obligations of mncs for the promotion of sustainable development would be a considerable shift from voluntarism to mandatory standards. however, there is a general lack of acceptance of csr in foreign investment laws of some developing countries because they are with first/second generation treaties, and often, csr remains a voluntary standard in these countries. c. non-corporate reporting: an inevitable commitment non-corporate reporting systems aim to confirm the corporate social activities that enterprises have undertaken to establish good practices in promoting social and human rights and environmental protection. this reporting includes more than the financial aspects of an enterprise. for example, the inter-agency working group on the private investment and job creation pillar of the g20 multi-year action plan on development states that reporting has become a common expectation placed on companies that want to be viewed as socially responsible.112 they request that companies publish an annual report on corporate issues. in a few countries—denmark, sweden, the netherlands, norway, and france—the law mandates publishing an annual report, while in other countries, this remains voluntary.113 if countries have a tradition of acknowledging csr as a voluntary standard, companies, and enterprises in those countries should communicate their csr pledges through annual non-corporate reporting to relevant 112 (iawg), supra note 4. united nations, supra note 4. 113 a d martin & d j hadley, "corporate environmental non-reporting – a uk ftse 350 perspective" (2008) 17:4 business strategy and environment at 245-246. 224 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective stakeholders. it is the only report that communicates companies' performance regarding csr voluntary standards and is considered a powerful communication tool by legitimacy theory, decision usefulness theory, and communication theory.114 the basic idea of these theories is that companies should disclose all their information on social and environmental impact, so the public can be aware of this performance and observe whether companies have undertaken various socially desirable commitments in compliance with csr standards. if a company has failed to meet agreed social and environmental norms, society can act against the company. moreover, this ensures company survival, rewards environmental and social performance, and ensures transparency.115 non-corporate reporting is also called sustainability reporting as defined in the sustainability reporting guidelines. 116 voluntary standards on csr, due diligence, and non-corporate reporting are primarily meant to ensure responsible business practices by all actors in foreign investment and are crucial to promoting responsible investment. in addition, they all help develop norms and standards on sustainable development, ensure good governance of natural resources, promote transparency and, thus, uphold the rule of law. the oecd guidelines encourage mnes to provide information on a broader set of topics such as internal company performance measures, timely and accurate disclosure of all corporate information related to their 114 p rikhardsson, r j a andersen & h bang, “sustainability reporting on the internet: a study of the global fortune 500” (2002) 40 greener management international 57-75. martin & hadley, supra note 113. 115 j guthrie & l d parker, “corporate social reporting: a rebuttal of legitimacy theory” (1989) 19:76 accounting and business research 345-352. see also a d martin & c deegan, "the legitimizing effect of social and environmental disclosures – a theoretical foundation" (2002) 15:3 accounting, auditing, and accountability journal at 282-311. 116 sustainability reporting is a broad term synonymous with other terms used to describe economic, environmental, and social impacts (e.g., triple bottom line and corporate responsibility reporting). see global reporting initiative, sustainability reporting guidelines, 2000-2011, global reporting initiatives, 3. several initiatives promote a standardized csr reporting framework (e.g., unctad's isar working group, global reporting initiative, carbon disclosure standards board, and international integrated reporting committee). 225 | indonesian journal of law and society financial situation, performance, ownership, and governance, including remuneration plans and incentive schemes, and non-financial reporting. this ensures disclosure of social, environmental, and risk reporting related to greenhouse gas emissions and biodiversity117 and extends to subcontractors and suppliers of joint ventures to ensure all partners monitor environmentally harmful activities.118 by complying with the oecd guidelines’ requirements, companies demonstrate socially acceptable practices, which is crucial to promoting sustainable development.119 domestic law should also impose legal requirements for non-corporate reporting or sustainability reporting to ensure that mncs adhere to voluntary csr standards on social and environmental protection. this requirement should be extended to private and public companies alike. d. remedial mechanism: home state as a competent forum besides extraterritorial home state statutes, plaintiffs can also use home state courts because of a lack of resources to sue the parent company domestically (in the host state). these are generally known as forum conveniens cases decided in the home state courts where the parent company is domiciled. lubbe v cape plc120 and chandler v. cape plc121 are significant in this regard. the lubbe case succeeded with its plea of forum non-conveniens. lubbe was an employee at the asbestos manufacturing, south african subsidiary company of uk parent company cape plc. cape plc was a public limited 117 oecd, supra note 18. 118 ibid. 119 non-oecd countries that adhere to the oecd guidelines are azerbaijan, cameroon, chinese taipei, colombia, croatia, egypt, estonia, haiti, indonesia, israel, jamaica, kazakhstan, kenya, latvia, liberia, lithuania, malaysia, mongolia, peru, russia, singapore, south africa, tunisia, ukraine, uzbekistan, venezuela, vietnam, and yugoslavia. see oecd, 'oecd proceedings, non-member economies and the oecd guidelines for multinational enterprises, paris 12 december 2000’ (report, oecd, 2001). 120 lubbe v cape plc [2000] 4 all er 268 (hl); lubbe and others v cape plc [2000] 1 wlr 1545. 121 chandler v. cape plc [2012] ewca civ 525. 226 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective company incorporated in england that owned several subsidiary companies in south africa engaging in mining, processing, and selling asbestosrelated products. lubbe was injured by exposure to asbestos and related products in south africa. the plaintiff's central allegation against the parent company was a failure to adopt appropriate mechanisms to ensure the safety and health of employees of its subsidiaries and people living in the vicinity. the parent company breached a duty of care towards its subsidiary company employees in south africa.122 the main plea of the defendants was forum non-conveniens. in the first instance, it was held that south africa was the appropriate forum.123 however, on appeal, the court of appeal concluded that the defendant had not clearly and distinctly proved that south africa was the most appropriate forum and, therefore, allowed the plaintiff’s appeal.124 this was one of 3,000 similar claims against cape plc, and all these cases proceeded as a group action.125 the defendant applied for a stay of all the proceedings against it. buckley j decided that south africa was clearly and distinctly the more appropriate forum for the trial of this group action. there were no sufficient reasons for nevertheless refusing a stay.126 the claimants then appealed to the house of lords, which did not doubt at all that the defendants had discharged the burden of showing that south africa was clearly and distinctly the more appropriate forum for the trial of these claims.127 the forum non-conveniens plea further can be scrutinized by analyzing lord kinnear's judgment in sim v robinow,128 he stated that the plea could never be sustained unless the court is satisfied that another tribunal has competent jurisdiction. the case may be tried more suitably for the interests of all the parties and the ends of justice.129 in this case, the court 122 lubbe and others v cape plc [2000] 1 wlr 1545. 123 ibid. 124 ibid. 125 ibid. 126 lubbe [2000] 1 lloyd’s rep 151. 127 lubbe and others v cape plc [2000] 1 wlr 154, 1554; c g j morse, ‘not in the public interest? lubbe v. cape plc’ (2002) 37 texas international law journal 541. 128 sim v robinow [1892] 19 r 665, 668. 129 lubbe and others v cape plc [2000] 1 wlr 1545, 1554. 227 | indonesian journal of law and society adopted the spiliada test to ensure forum convenience. in the spiliada case,130 it was stated: the basic principle is that a stay will only be granted on the ground of forum non-conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e., in which the case may be tried more suitably for the interests of all the parties and the ends of justice.131 chandler v. cape plc was one of the first cases where the court of appeal imposed liability on a parent company for breach of its duty of care to an employee of its subsidiary.132 the court of appeal judgments address the possibilities of seeking damages in tort claims from a parent company. in this case, the claimant worked as a brick loader in the defendant company and suffered from asbestosis due to migrating dust from asbestos production. as a result, the claimant brought a claim against the parent company, alleging that it owed a direct duty of care to the employees of its subsidiary company to advise on or to ensure a safe system of work for them.133 the court examined the relationship between the parent and subsidiary company to see whether the parent company should be held responsible for the health and safety of its subsidiary company's employees. the court found no need for absolute control by a parent company of its subsidiary to find a duty of care. however, the law might impose such a duty on a parent company for the health and safety of employees of its subsidiary.134 the court found that the businesses of the two companies were in a relevant respect the same. the parent company had superior knowledge of a relevant aspect of its subsidiary's health and safety protocols. it knew 130 spiliada maritime corp v cansulex ltd [1987] ac 460, 476. 131 lubbe and others v cape plc [2000] 1 wlr 1545, 1554. 132 ibid at 1545; martin petrin, ‘assumption of responsibility in corporate groups: chandler v cape plc’ (2013) 76 modern law review 603, 603. 133 chandler v. cape plc [2012] exca civ 525, 3111. 134 ibid at 3111-3112. 228 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective about the subsidiary's unsafe work system and should have ensured that its employees used that superior knowledge for their protection.135 the court held that it had assumed a duty of care either to advise the subsidiary on what steps it had to take to provide employees with a safe work system or to ensure that those steps were taken. in those circumstances, the defendant owed a direct duty of care to employees of the subsidiary company. there had been an omission to advise on precautionary measures that had resulted in injury to the claimant.136 the bhp lawsuit137 is another example of extraterritorial jurisdiction for tort claims on environmental degradation. the case was successfully lodged in the victorian courts against australian-based corporation bhp for environmental degradation committed in the territory of papua new guinea. in 1996, bhp and the plaintiffs agreed to a settlement for approximately a$40 million as compensation and dredging tailings from the river to limit further damage through an out-of-court settlement.138 in 2001, bhp merged with billiton, and in 2002, withdrew from its ok tedi mine and transferred its 52 percent equity to the papua new guinea sustainable development programme limited.139 the european civil law legal system allows civil claims attached to criminal proceedings (partie civile).140 however, mccorquodale observed the unwillingness of public prosecutors to bring civil tort claims.141 for instance, 135 ibid. 136 ibid. arden lj held: in these circumstances, there was, in my judgment, a direct duty of care owed by cape to the employees of cape products. in addition, there was an omission to advise on precautionary measures even though it was doing research. that research had not established (nor could it establish) that the asbestosis and related diseases were not caused by asbestos dust. moreover, while i have reached my conclusion in my own words and following my route, it turns out that, in all essential respects, my reasoning follows the judge's analysis in paras 61 and 72-75 of his judgment. see chandler v cape plc, 3131. 137 dagi v broken hill proprietary co ltd [1997] 1 vr 428. 138 business and human rights resource centre, bhp lawsuit (re papua new guinea) <https://www.business-humanrights.org/en/bhp-lawsuit-re-papua-newguinea>; dagi v broken hill proprietary co ltd (no 2) [1997] 1 vr 428. 139 ibid. 140 mccorquodale, supra note 46 at 849. 141 ibid. 229 | indonesian journal of law and society the akpan case142 involved a breach of the duty of care by the shell parent company and its nigerian subsidiary. the court concluded that the court held that in this instance, nigerian law did not allow for the parent corporation to be liable. nevertheless, the rulings indicate that such claims could be brought in civil law legal systems.143 the court observed a more limited approach than chandler.144 ix. conclusion applying csr standards in capital-dependent developing countries was only possible when corporate, home state, and the host government took appropriate actions at the policy level. although internationally recognized voluntary standards for self-regulation should be incorporated into the internal policies of mncs, the lack of legal commitment and the dubious implementation of such standards hinders this approach. it argued for a legally binding mechanism to improve csr standards and suggested that incorporating an expanded form of csr standards into an investment treaty and the domestic foreign investment laws of the host states would make it possible to provide accountability and move from voluntarism to mandatory standards. the domestic foreign investment laws of the host states would make it possible to provide accountability and move from voluntarism to mandatory standards. it highlighted the importance of the due diligence test that emphasizes the role of actors in implementing csr standards to overcome practical difficulties. additionally, applying extraterritorial jurisdiction by home state laws may enable recourse for damages or compensation from mncs, primarily through tort claims, including convenient forum actions that prevail in us laws, uk common law, and european civil law. these will help reduce severe environmental and human rights violations by mncs in capital-dependent host countries, but the future application of such laws remains uncertain. 142 akpan v royal dutch shell plc, arrondissementsrechtbank den haag [district court of the hague], 30 january 2013, case no c/09/337050/ha za 09-1580. 143 ibid. 144 ibid. 230 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective acknowledgments this paper was developed based on her ph.d. thesis entitled, "foreign investment and sustainable development: a critical analysis from the sri lankan legal perspective,’’ at the faculty of law, queensland university of technology, brisbane, australia, in 2019. references aid, christian, behind the mask the real face of corporate social responsibility (christian aid, 2004). aswathappa, k, international business (mcgraw hill education, 2015). birnie, patricia w, alan e boyle’ & catherine redgwell, international law and the environment (oxford university press, 2009). bonnitcha, jonathan & robert mccorquodale, “the concept of ‘due diligence’ in the un guiding principles on business and human rights” (2017) 28:3 european journal of international law. bottomley, s & d kinley, “corporations and human rights’” in commercial law and human rights (ashgate, 2002). chanin, j m, “the regulatory grass is greener: a comparative analysis of the alien tort claims act and european union’s green paper on corporate social responsibility” (2005) 12:2 indiana journal of global legal studies. christian aid, "behind the mask: the real face of corporate social responsibility | eldis," online: <https://www.eldis.org/document/a14 595>. conway, madeleine, “a new duty of care? tort liability from voluntary human rights due diligence in global supply chains” (2015) 40:2 queen’s law journal. corporations, united nations commission on transnational, “united nations commission on transnational corporations: report of the secretariat on the outstanding issues in the draft code of conduct 231 | indonesian journal of law and society on transnational corporations” (1984) 23:3 international legal materials 602–625. dearing, andrew, sustainable innovation: drivers and barriers (geneva: oecd, 2000). dubin, laurence, “corporate social responsibility clauses in investment treaties – investment treaty news” (2018) investment treaty news, online: <https://www.iisd.org/itn/en/2018/12/21/corporate-socialresponsibility-clauses-in-investment-treaties-laurence-dubin/>. dunning, john h & sarianna m lundan, multinational enterprises, and the global economy (cheltenham: edward elgar, 2008). guthrie, j & l d parker, “corporate social reporting: a rebuttal of legitimacy theory” (1989) 19:76 accounting and business research 345–352. hart, jeffrey a & joan edelman spero, the politics of international economic relations (london: routledge, 1997). hunter, david, james salzman & durwood zaelke, international environmental law and policy (thomson reuters foundation/ foundation press, 2011). iawg, promoting standards for responsible investment in value chains, inter-agency working group (2011). ichrp, beyond voluntarism: human rights and the developing international legal obligations of companies, international council on human rights policy (versoix, 2002). ilo, tripartite declaration of principles concerning multinational enterprises and social policy (geneva: international labor organization, 2017). irene pietropaoli & bobbie sta maria, briefing: development for all, or a privileged few? business and human rights in southeast asia, by irene pietropaoli & bobbie sta maria (business and human resource centre, 2017). 232 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective iso, contributing to the un sustainable development goals with iso standards (geneva: international organization for standardization, 2018). joseph, sarah louise, “an overview of the human rights accountability of multinational enterprises” in liability of multinational corporations under international law (kluwer law international, 2001). kolmar, mark, asset owner strategy guide: how to craft an investment strategy (pri, 2018). leonard, h jaffrey, “multinational corporations and politics in developing countries” (1980) 32:3 world policy. mares, radu, “a gap in the corporate responsibility to respect human rights” (2010) 36:3 monash university law review. martin, a d & c deegan, "the legitimising effect of social and environmental disclosures – a theoretical foundation" (2002) 15:3 accounting, auditing, and accountability journal. martin, a d & d j hadley, “corporate environmental non-reporting – a uk ftse 350 perspective” (2008) 17:4 business strategy and environment. matin-ortega, olga, “human rights due diligence for corporations: from voluntary standards to hard law at last” (2013) 32:1 netherlands quarterly of human rights. mccorquodale, robert, “waving not drowning: kiobel outside the united states” (2013) 107:4 the american journal of international law. meyer, william h, “human rights and mncs: theory versus quantitative analysis” (1996) 18:2 human rights quarterly 368– 397. miretski, pini p & sascha-dominik bachmann, “the un ‘norms on the responsibility of transnational corporations and other business enterprises with regard to human rights’: a requiem’” (2012) 17:1 deakin law review. 233 | indonesian journal of law and society murphy, sean d, “taking multinational corporate codes of conduct to the next level” (2005) 43:2 columbia journal of transnational law 1-25. oecd, annual report on the oecd guidelines for multinational enterprises 2017 (2018). oecd oecd guidelines for multinational enterprises (paris: oecd publishing, 2008). oecd, oecd due diligence guidance for responsible business conduct (oecd, 2018). pendleton, andrew, “the real face of corporate social responsibility” (2004) 14:3 consumer policy review. prislan, vid & ruben zandvliet, “mainstreaming sustainable development into international investment agreements: what role for labour provisions?” in international investment law and development: bridging the gap (edward elgar publishing, 2015). richter, judith, codes in context: tnc regulation in an era of dialogues and partnership (2002). rikhardsson, p, r j a andersen & h bang, “sustainability reporting on the internet: a study of the global fortune 500” (2002) 40 greener management international 57-75. rubin, seymour j, “transnational corporations and international codes of conduct: a study of the relationship between international legal cooperation and economic development” (1995) 10:4 american university international law review. shao, yanmin, “does fdi affect carbon intensity? new evidence from dynamic panel analysis” (2018) 10:1 international journal of climate change strategies and management 27-42. sornarajah, m. the settlement of foreign investment disputes (kluwer law international, 2000). sornarajah, m, the international law on foreign investment (cambridge university press, 2021). 234 | corporate social responsibility and mncs: an appraisal from investment treaty law perspective stiglitz, joseph e, “multinational corporations: balancing rights and responsibilities” (2017) 101 proceedings of the asil annual meeting. unctc, commission on transnational corporations : report on the special session e/1983/17/rev.1 (new york, 1983). united nations, guide to the global compact: a practical understanding of the vision and nine principles (united nations, 2003). united nations, the guiding principles on business and human rights: implementing the united nations “protect, respect and remedy” framework (geneva: publishing service, 2011). unctad, making fdi work for sustainable development (geneva: unctad, 2004). unctad, world investment report 2017: investment and the digital economy (geneva, 2017). weissbrodt, david & muria kruger, “norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights” (2003) 97:4 american journal of international law. world bank, world development report 2017: governance and the law, (washington, 2017). world bank group, global investment competitiveness report 2017/2018: foreign investor perspectives and policy implications (world bank group, 2018). microsoft word 28258.edited.doc indonesian journal of law and society (2022) 3:1 81-122 issn 2722-4074 | https://doi.org/10.19184/ijls.v3i1.28258 published by the university of jember, indonesia available online 20 march 2022 _____________________________ * corresponding author’s e-mail: ahangadkari2000@gmail.com harmonizing international commercial arbitration: a special focus on time limit to setting aside an award ahan mohit gadkari* o.p. jindal global university, india abstract: harmonizing international commercial arbitration with domestic courts is paramount in international commercial law. in this aspect, the time limit decided for setting aside an award is an essential aspect of the entire process of harmonization. by using in-depth analysis, this paper aimed to analyze the judicial practice of the period to set aside an award across common law jurisdictions. this paper contended that domestic courts lack the authority to extend the period for applying to vacate an award and some recurrent fact patterns that arise when parties attempt to argue for such discretion and how courts in other countries have addressed comparable instances. it delved into the harmonization of international commercial arbitration by considering the authority of domestic courts to extend the period for applying to vacate the award given that a significant reason for the success of the uncitral model law on international commercial arbitration (model law) is the cross-jurisdictional consistency of standards that can result from the model law's uniform application, particularly concerning those provisions considered mandatory. while leaving aside common law jurisdictions that have not adopted the model law, one would expect that the common law jurisdictions that have adopted the uncitral model law must be consistent in their interpretations. then, a proper international jurisprudence will harmonize international commercial arbitration proceedings globally for the benefit of parties. however, such cross-border uniformity is difficult to establish, as the model law discussed in this paper showed. article 34(3) of the model law on the time bar for setting aside an award, not providing domestic courts the authority to extend this time restriction, several unusual cases from asian model law states imply that such authority exists. keywords: international commercial arbitration, uncitral, model law. copyright © 2022 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 13/12/2021 reviewed: 15/12/2021 revised: 07/03/2022 accepted: 09/03/2022 how to cite: gadkari, ahan mohit, “harmonizing international commercial arbitration: a special focus on time limit to setting aside an award” (2022) 3:1 indonesian journal of law and society 81122, online: <https://doi.org/10.19184/ijls.v3i1.28258>. 82 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … i. introduction the united nations commission on international trade law (uncitral) approved the model law in june 1985, and it has been a significant success after 118 jurisdictions in 85 states have accepted it.1 as redfern and hunter stated, the new york convention on the recognition and enforcement of foreign arbitral awards elevated international arbitration to the global stage, and the model law elevated it to stardom.2 previous studies have addressed the availability of such an option and the harmonization of arbitration laws across jurisdictions, focusing on several other principles.3 the model law's raison d'être deals with harmonizing diverse nations' internal arbitration rules.4 the three principles influenced its formulation, inter alia, party autonomy, curial involvement only when necessary, and certainty and finality in arbitral procedures. it is critical in determining how the model law should be understood, particularly article 34(3) of the model law. article 34 aimed at the only 1 uncitral, “status: uncitral model law on international commercial arbitration (1985), with amendments as adopted in 2006”, (2010), online: <https://uncitral.un.org/ en/texts/arbitration/modellaw/commercial_arbitration/status>. 2 nigel blackaby, et al., redfern and hunter on international arbitration (oxford university press, 2015) at 1220; j l greenblatt & p griffin, “towards the harmonization of international arbitration rules: comparative analysis of the rules of the icc, aaa, lcia and cietac” (2001) 17:1 arbitration international at 101–110. andreas r wehowsky & johannes landbrecht, “transnational coordination of setting aside and enforcement of arbitral awards – a new treaty and approach to reconciling the choice of remedies concept, the judgment route, and the approaches to enforcing awards set aside?” (2020) 37:6 journal of international arbitration at 679-719. k d kerameus, “waiver of setting-aside procedures in international arbitration” (1993) 41:1 the american journal of comparative law at 73. 3 nigel blackaby, et al, supra note 2. j. l. greenblatt & p. griffin, supra note 2. andreas r. wehowsky & johannes landbrecht, supra note 2. k. d. kerameus, supra note 2. 4 uncitral, “report of the secretary-general: possible features of a model law on international commercial arbitration," un doc. a/cn.9/207, 16 (1981). frank-bernd weigand, practitioner’s handbook on international commercial arbitration (oxford, new york: oxford university press, 2010) at 1-10. joshua karton, the culture of international arbitration and the evolution of contract law (oxford: oxford university press, 2013). tamar meshel, “procedural cross-fertilization in international commercial and investment arbitration: a functional approach” (2021) 12:4 journal of international dispute settlement at 585-616. elvia adriano, "commercial arbitration: its harmonization in international treaties, regional treaties, and internal law” (2009) 27:3 penn state international law review at 818-849. 83 | indonesian journal of law and society active remedy available against an arbitral judgment for a very short time and a relatively limited range of grounds.5 it is likely the most significant element of the model law since it restricts national courts' jurisdiction to examine and set aside an arbitral ruling. the time restriction for bringing an application to set aside an arbitral award is specified in article 34(3). the provision is succinct, stating that an application for setting aside may not be made after three months have elapsed from the date the party making that application received the award. otherwise, if a request had been made under article 33, the arbitral tribunal had disposed of that request from the date.6 this paper refers to the time restriction within which a setting-aside application must ordinarily be submitted as the setting-aside time period (satp), whether in model law or the applicable domestic legislation. despite the apparent clarity of the text, courts in numerous jurisdictions have been faced with the issue of whether there is any general curial discretion to allow a setting-aside motion to be submitted after the stipulated three-month term has expired. in other words, whether courts have the power to extend the satp. this paper aimed to analyze the judicial practice of the period to set aside an award across common law jurisdictions. this paper contended that domestic courts lack the authority to extend the period for applying to vacate an award and some recurrent fact patterns that arise when parties attempt to argue for such discretion and how courts in other countries have addressed comparable instances. it examined how major common law model law (and some non-model law) countries have addressed this question, including more recent judgments in a few jurisdictions. the courts have considered three primary elements in determining how to answer this issue by analyzing a detailed study of the relevant case law categorized by jurisdiction. further, this paper discusses how the major 5 uncitral, "report of the united nations commission on international trade law on the work of its eighteenth session," un doc. a/40/17, 15 (1985); uncitral, "analytical commentary on draft text of a model law on international commercial arbitration," un doc. a/cn.9/264, 1 (1985), article 34. 6 model law, article 34(3). 84 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … common law model law courts have addressed two fact patterns or lines of argument that frequently arise when parties seek to challenge the applicability of the satp. first, whether a timely setting-aside application can be amended or supplemented after the satp has expired. second, whether fraud affecting the arbitral award was discovered after the award was rendered constitutes a judicial error. finally, the paper considers the case in which the satp and the deadline for contesting an award have expired. in a recent test case, the singapore courts demonstrated that their readiness to consider these periods differ depending on whether or not they had the option to extend them. they emphasize the conceptual distinction between these two remedies. ii. methods this paper was conducted by critically analyzing various domestic and international law legislation and the court's interpretation and application. it considered various cases in various asian common law jurisdictions and uses them as the basis for the study. it took a case law-based analysis of several different jurisdictions worldwide. theoretical analysis combined descriptive and analytical approaches based on the primary and secondary sources best suited current research. the data was collected through an extensive literature survey, library research, and internet search. iii. jurisprudence in model law countries a. singapore the singapore high court first addressed whether courts may extend the satp in its 2003 judgment in abc co. v. xyz co. ltd., the first recorded case on article 34(3) in an asian model law nation.7 in that instance, the claimants sought to vacate the award via an originating petition. this application for setting aside was submitted within the satp. however, more than thirteen months after the arbitral judgment was delivered, the claimants sought to alter that petition to include six additional reasons for 7 abc co. v. xyz co. ltd., [2003] sghc 107. 85 | indonesian journal of law and society setting aside the verdict. the high court judge, judith prakash (now justice of appeal), held that article 34(3) had been drafted as the allinclusive and exclusive basis for challenging an award in court, and thus that article 34(3) did not confer on the court the authority to extend the time limit for applying to set aside an international arbitration award beyond the prescribed three months.8 pt pukuafu indah v. newmont indonesia ltd. was the next singaporean case to address this point (albeit obliquely and briefly).9 the primary finding, in this case, was that an arbitral tribunal's interlocutory order was not an award and so could not be set overturned by the courts. however, the high court continued to analyze the satp issue for completeness. lee seiu kin concurred with prakash's reasoning in abc and determined that article 34 (3) placed a necessary time restriction on setting-aside petitions filed after the satp expired.10 subsequently, anselmo reyes (a former judge of the hong kong court of first instance) had the chance to expound on the singapore position in the 2019 case of bxs v. bxt, sitting as an international judge in the singapore international commercial court (sicc).11 the circumstances of the case are irrelevant; a plaintiff sought to vacate a judgment after the satp had expired. thus, one of the court's issues was whether the court has the discretion to prolong the satp. reyes's exhaustive ruling considered the methodologies followed by other countries in resolving this question and the line of relevant singapore case authority. reyes ultimately decided that article 34(3) did not allow courts to extend the satp. with the singapore court of appeal's recent decision in early 2021 in bloomberry resorts and hotels inc v. global gaming philippines llc, singapore courts have no discretion to extend the satp. in ostensibly deserving cases involving fraud, it is discovered after the arbitral award was 8 ibid at 9. 9 pt pukuafu indah v. newmont indonesia ltd., [2012] sghc 187. 10 ibid at 30. 11 bxs v. bxt, [2019] sghc(i) 10; the sicc is a division of the singapore high court, and decisions rendered by sicc international judges are accorded the same precedential weight as those rendered by other singapore high court judges. 86 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … rendered.12 this decision concludes a long line of singapore authorities who have repeatedly supported the stringent implementation of the satp. b. malaysia malaysia's stance on the strictness of the satp is ambiguous. this issue was discussed in both the high court and court of appeal in government of the lao people's democratic republic v. thai-lao lignite co. ltd., with the court of appeal reaching the same conclusion as the high court, but significantly different reasons and with a conflicting ratio decidendi.13 confusion is exacerbated by at least three subsequent malaysian high court judgments that reached a different outcome from the court of appeal. in the lao series of cases, a disagreement emerged between the applicant (laotian government) and the respondent (thai mining corporations). the government of laos filed an application with the kuala lumpur high court to set aside an arbitral judgment against it nine months after the award was rendered and a request to extend the satp. in the high court, hamid sultan abu backer (later elevated to the malaysian court of appeal) held the language of section 37(4) of the malaysian arbitration act 2005. it is identical to article 34(3) of the model law except that the satp is fixed at ninety days rather than three months, conferring discretion on the court to extend the satp. however, hamid sultan declined to exercise that discretion, stating that the court's decision had to be made in light of two additional factors. first is the spirit of minimal court intervention in matters governed by the malaysian arbitration act 2005. second is the need to harmonize the interpretation of article 34(3) with decisions from other jurisdictions, namely singapore 12 bloomberry resorts and hotels inc v. global gaming philippines llc, [2021] sgca 9 (bloomberry sgca). bloomberry resorts and hotels inc v. global gaming philippines llc, [2020] sghc 1. 13 government of the lao people’s democratic republic v. thai-lao lignite co. ltd. (lao court of appeal), civil appeal no. w-02(ncc)-1287-2011. government of the lao people’s democratic republic v. thai-lao lignite co. ltd. (lao high court), [2012] 10 clj 399. 87 | indonesian journal of law and society and new zealand.14 having considered these factors and the circumstances of the case, the high court concluded that there was no justification for the plaintiff's delay in filing the setting aside motion. it declined to use its power to grant an extension of time. on appeal in 2011, the malaysian court of appeal comprised ramly haji ali, jeffrey tan kok wha, and zaharah ibrahim. the court confirmed that the malaysian courts possessed jurisdiction to grant an extension of time to set aside an arbitral award based on the language of section 37(4) of the malaysian arbitration act 2005. however, it disagreed with the limiting considerations accounted by the high court judge. additionally, it expressed disagreement with hamid sultan's notion that malaysian courts should adopt a general attitude of minimum curial interference.15 accordingly, the malaysian court of appeal decided that the court had unrestricted authority to prolong the satp and that the overriding principle was that justice must be done. on the issue of whether the court should exercise its discretion, the malaysian court of appeal determined that the court should exercise its discretion in favor of the appellant. it allowed the appellant to apply to set aside the award and remand the case to the high court for consideration by a different judge. the malaysian court of appeal was willing to provide broad discretion in cases where the delayed party was a foreign sovereign, stating that procedural delay inherent in the decision-making process of a state was inherent in its functioning.16 however, three malaysian high court judgments after the lao court of appeal doubt the court of appeal's rationale and findings. the first is j.h.w. reels sdn. bhd. v. syarikat borcos shipping sdn. bhd., a 2013 decision.17 the facts of the case are unremarkable, though they are notable for the plaintiff's brief delay in bringing the application to set aside – the plaintiff was only six days late under the ninety-day satp specified in section 37(4) of the malaysian arbitration act 2005. mohamad ariff 14 ibid 13-15. 15 ibid 30-31. 16 ibid at 21. 17 j.h.w. reels sdn. bhd. v. syarikat borcos shipping sdn. bhd. (jhw), [2013] 7 clj 249. 88 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … yusof followed customary legislative interpretation principles and determined that the required satp was mandatory and could not be extended by the courts.18 yusof disagreed with hamid sultan's interpretation of section 37(4) but did not refer to the lao court of appeal ruling, implying that he was unaware. subsequently, in the 2016 case of kembang serantau sdn. bhd. v. jeks engineering sdn. bhd., the identical issue was raised for consideration.19 the facts of this case are also irrelevant to the issue. however, they may serve as an even starker illustration of the satp's strictness–the plaintiff filed its setting-aside application one day late due to an oversight on the part of its solicitors (a paralegal allegedly made the unfortunate error).20 after conducting a thorough textual examination, high court judge mary lim (who has since been promoted to the federal court) determined that the word 'may' in section 37(4) of the malaysian arbitration act 2005 required a mandatory interpretation.21 citing section 8 of the same act, mary lim concluded that courts lacked the authority to extend the satp in any circumstance other than those specifically allowed for in the malaysian arbitration act 2005. finally, in triumph city development sdn. bhd. v. selangor state government, it was undisputed that the plaintiff's setting-aside motion was submitted late. the only question was whether the court had the authority to extend the satp and whether it should do so.22 mohd yazid bin mustaffa concurred thoroughly with mary lim in kembang serantau and found that the satp was rigid, with no discretion for the courts to extend it.23 appeals against the last two high court judgments have been denied by the malaysian court of appeal, albeit unpublished and without written grounds.24 consequently, at least two 18 ibid at 19. 19 kembang serantau sdn. bhd. v. jeks engineering sdn. bhd. (kembang serantau), [2016] 2 clj 427. 20 ibid at 29. 21 ibid. 22 triumph city development sdn. bhd. v. selangor state government (triumph city), [2017] 8 amr 411. 23 ibid at 5-6. 24 kembang serantau sdn. bhd. v. jeks engineering sdn. bhd. (court of appeal civil appeal no. w-02(im)(c)-1769-10/2015) (unreported), and selangor state 89 | indonesian journal of law and society malaysian court of appeal judgments contradicts the lao case's findings. as of the time of writing, the matter remains ripe for clarification by the malaysian federal court. c. hong kong in the 2016 case of sun tian gang v. hong kong & china gas (jilin) ltd., the court of first instance of hong kong found that the court can extend the deadline for filing a motion to set aside an award.25 the plaintiff and defendant were parties to an arrangement in which the defendant committed to acquire the plaintiff's firm stock. the agreement was controlled by hong kong law, and disagreements were to be addressed by arbitration in hong kong under the hong kong international arbitration centre rules (hkiac rules). the defendant was required to pay in three tranches under the agreement, but a disagreement ensued, and the defendant refused to pay the third and final tranche. on 3 august 2005, the defendant notified the plaintiff in writing of its intention to withhold the payment. on 11 august 2005, mainland public security officers arrested the plaintiff in shenzhen on suspicion of deception, providing false capital, misappropriation, and bribery. the complainant was detained until 6 march 2012, about six years and seven months. according to the lawsuit, he was jailed during that time while awaiting trial. while the plaintiff was detained (and thus incommunicado), the defendant initiated arbitration on 18 november 2005. it served the notice of arbitration on the plaintiff at four different addresses, three in hong kong one in mainland china. it included the agreement's 'communication address' and the address of another individual (identified as 'du') who was alleged to be the plaintiff's agent for purposes of the agreement. the defendant was aware that the plaintiff had been arrested and could not participate in the arbitration. du had explicitly disclaimed and disowned government v. triumph city development sdn. bhd. (court of appeal civil appeal no. b-01(im)(ncc)-48-02/2017) (unreported). 25 sun tian gang v. hong kong & china gas (jilin) ltd. (sun tian gang), [2016] hkcfi 1611. 90 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … any capacity or power to represent or present the plaintiff's case in the arbitration. despite this, an arbitral tribunal was established. they kept serving the letters on behalf of the plaintiff to du. the arbitral tribunal rendered a decision against the plaintiff on 15 march 2007. in light of these facts, the plaintiff moved to vacate the award on 16 october 2015, almost eight years after it was given. the hong kong court of first instance decided, among other things, that it has jurisdiction and authority to extend the deadline for applying to vacate an award. mimmie chan did not cite any specific hong kong procedural law provision to justify the court's discretion to extend time. her ladyship noted that the hong kong court of final appeal had previously interpreted the word 'may' in article 34(2) of the model law to confer on courts a similar discretion in the earlier case of hebei import & export corp. v. polytek engineering co. ltd.26 mimmie chan used this reasoning to analogize linguistically that the word 'may not' in article 34(3) conferred a similar discretion on the court, and thus that the phrase 'an application for setting aside may not be made after three months' meant that the court had the discretion to allow or deny an application for setting aside made after the satp.27 the court determined compelling grounds for the time extension and granted the motion. in the following recent case of a. and others v. d., the similar question of extending the satp came before mimmie chan in the hong kong court of first instance.28 in contrast to sun tian gang, the circumstances of this case are not especially extraordinary. the applicant filed its motion to set aside the contested arbitral decision one month late and requested a retroactive extension of the satp. chan observed that this case did not allow the parties to make complete representations on whether the hong kong courts had jurisdiction to extend the satp in the first place.29 on the other hand, her ladyship was content to proceed, assuming that the courts did have such jurisdiction and 26 hebei import & export corp. v. polytek engineering co. ltd., [1999] hkcfa 40. 27 sun tian gang v. hong kong & china gas (jilin) ltd., supra note 25 at 90. 28 a. and others v. d., [2020] hkcfi 2887. 29 ibid at 10. 91 | indonesian journal of law and society that the issue. this case was whether the applicants met the admittedly high factual threshold necessary to convince the court on compelling reasons to exercise its discretion.30 mimmie chan determined that the applicants failed to provide a sufficient explanation for their late filing of their motion to set aside. therefore, there was no justification for the court to exercise its power to extend the satp.31 hong kong's situation seems that courts have the discretion to extend the satp. however, the late applicant must present a compelling basis for the court to do so. d. australia australia maintains a rigorous interpretation of the satp. the matter seems to have been addressed only in the federal court of australia in the first instance obliquely. the question in both emerald grain australia v. agrocorp international and hebei jikai industrial group v. martin was whether the satp precludes a party from relying on reasons for setting aside that were not satisfactorily stated in the first motion for set aside.32 the federal court accepted in both cases that allow a party to rely on insufficiently pleaded grounds after the satp expired would frustrate the policy of upholding arbitral awards that underpinned the satp.33 the federal court of australia recently used sharma v. military ceramics corp. to express its views on whether australian courts have the authority to extend the satp or not.34 although these remarks were offered obiter since the court was not obligated to determine the matter, they seem to be the most exhaustive articulation of curial opinions on the strictness of the satp under australian law. according to angus stewart, the weight of authority strongly favored the conclusion that the court could not extend 30 ibid at 11. 31 ibid at 12. 32 emerald grain australia v. agrocorp international, [2014] fca 414. hebei jikai industrial group v. martin, [2015] fca 228. 33 emerald grain australia v. agrocorp international, supra note 32, at 8. hebei jikai industrial group v. martin, supra note 32 at 61. 34 sharma v. military ceramics corp., [2020] fca 216. 92 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … the satp. the presence of such a power would be contrary to the model law's framework and underlying policy.35 e. new zealand the new zealand courts have taken it for granted that the courts do not have the authority to extend the satp. the problem does not seem to have been tackled straight on yet. tthe strictness of the satp was never in question between the parties in any relevant instances. the primary issue in the 2003 case of opotiki packing & coolstorage v. opotiki fruitgrowers co-operative was when the satp would begin to run if one party filed a request to rectify an award according to article 33 of the model law.36 however, the parties agreed in the high court that the court lacked the authority to prolong the satp. additionally, there was no indication on appeal that the court of appeal had the authority to prolong the satp. in downer-hill joint venture v. fijian government, the new zealand high court referenced opotiki favorably and said that the satp constituted a 'limiting period.'37 the court and the parties agreed that beyond the satp, no new 'cause of action' may be introduced.38 the circumstances of this case are noteworthy for various reasons, and it is sufficient to notice that no allegation was made that the court had the authority to extend the satp. in the 2014 case of todd petroleum mining v. shell (petroleum mining), the court considered how the power of an aggrieved arbitral party to obtain a supplemental award related to the satp.39 according to the new zealand court of appeal, the three-month satp begins to run on the day the arbitral panel decides on any request for an extra award.40 however, it is sufficient to know that the new zealand court of appeal said unequivocally that the satp in section 34(3) was solid because there is no 35 ibid at 49-50. 36 opotiki packing & coolstorage v. opotiki fruitgrowers co-operative, [2003] 1 nzlr 205. 37 downer-hill joint venture v. fijian government, [2005] 1 nzlr 554 at 31. 38 ibid at 40. 39 todd petroleum mining v. shell (petroleum mining), [2014] nzca 507. 40 ibid at 36. 93 | indonesian journal of law and society discretion to prolong them.41 finally, in the 2015 case of kyburn investments v. beca corporate holdings, one of the questions before the new zealand court of appeal was whether kyburn's motion to set aside an arbitral judgment was made in good faith.42 the critical aspect to emphasize is that the parties and the court agreed that the setting-aside application would be out of time unless it could be designated as a fresh 'cause of action' within the three-month satp.43 f. ireland the irish perspective implies that the satp is rigid, and the courts cannot extend it. in moohan, et al. v. s&r motors (donegal),44 the irish high court read article 34(3) as establishing a 'strict three-month limit in respect of which no possibility exists for an extension of time.'45 g. canada the little canadian case law on the subject indicates that courts do not have the authority to prolong the satp. the ontario superior court was not necessary to determine the question in ontario inc. v. lakeside produce since the parties agreed that the court lacked the authority to extend the satp.46 h. india even though many observers do not consider india a model law country, the model law influenced a large portion of the indian arbitration and conciliation act, 1996.47 thus, india is considered a model law country 41 ibid at 57. 42 kyburn investments v. beca corporate holdings, [2015] nzca 290. 43 ibid at 62. 44 moohan, et al. v. s&r motors (donegal), [2009] iehc 391. 45 ibid at 3.4. 46 ontario inc. v. lakeside produce, [2017] onsc 4933 at 18. 47 harisankar k sathyapalan & aakanksha kumar, “the 1985 model law and the 1996 act: a survey of the indian arbitration landscape from part i jurisdictions that have 94 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … for the scope of this paper. the indian legislative provision defining the satp is within section 34(3) of the indian arbitration and conciliation act 1996, which states that an application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award.48 this portion of the legislative provision is comparable to model law article 34(3). this article has an additional provision that permits indian courts to hear a setting aside application that is not more than thirty days late if the applicant was precluded from filing a timely application due to sufficient cause, which is irrelevant.49 the indian locus classicus is the 2001 decision union of india v. popular construction co. the indian supreme court held – even before prakash's 2003 decision in abc v. xyz – the indian arbitration and conciliation act 1996 impliedly excluded the court's statutory general discretion to extend limitation periods. that recourse to the court against an arbitral award could not be made beyond the period.50 recently, the indian supreme court ruled in p. radha bai v. p. ashok kumar that india's satp is rigid and that indian courts lack the authority to extend it.51 adopted the model law: implementation and comparisons” in gary f bell, the uncitral model law and asian arbitration laws implementation and comparisons (cambridge university press, 2018); arjit oswal & balaji sai krishnan, “public policy as a ground to set aside arbitral award in india” (2016) 32:4 arbitration international at 651– 658; puneeth ganapathy, “court discretion in indian setting-aside proceedings: modification v. doing ‘complete justice’”, kluwer arbitr blog (15 september 2021), online: <http://arbitrationblog.kluwerarbitration.com/2021/09/15/court-discretion-in-indiansetting-aside-proceedings-modification-v-doing-complete-justice/>.; aditya metha, tanya singh, & ria lulla, “this is the end: what now? the aftermath of an award being set aside”, amarchand mangaldas india corp law (5 may 2021), online: <https://corporate.cyrilamarchandblogs.com/2021/05/this-is-the-end-what-now-theaftermath-of-an-award-being-set-aside/>.; rupal panganti, “setting aside of domestic arbitral award in conflict with public policy of india”, scc (28 july 2021), online: <https://www.scconline.com/blog/post/2021/07/28/domestic-arbitral-award/>. 48 arbitration and conciliation act 1996, section (s.) 34(3). 49 the proviso reads as follows: ‘provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months, it may entertain the application within a further period of thirty days, but not thereafter.' 50 union of india v. popular construction co., (2001) air sc 4010 at 4. 51 p. radha bai v. p. ashok kumar, civil appeal no. 7710-7713 of 2013. 95 | indonesian journal of law and society iv. factors considered by the judiciary there are three major factors or justifications prevalent in the relevant judgments. they are statutory interpretation, the model law's article 5 and its relationship with extrinsic powers, the restriction provision, the analysis of the significance of this provision, and other policy considerations. while dicta in case law seldom show which (if any) of these elements were important in the court reaching its judgment, these three variables are likely to have some persuasive weight when arguing before any court in a major arbitration jurisdiction. a. interpretation of statutes most courts adhere to the clear language of the applicable legislative provision codifying the satp, whether that provision is article 34 (3) of the model law or its local counterpart. the critical words are 'may not' in article 34(3). the courts must determine whether the language expression 'may not' has a discretionary or obligatory consequence. in other words, does the term 'may not' appropriately imply that the courts have the authority to extend the satp? this ostensibly straightforward phrase has created some interpretive difficulties. 1. malaysia malaysian courts have gratuitously dealt with textual interpretation at best. there was no extensive textual examination of the many shades of meaning that the phrase 'may not' may have in the malaysian high court and court of appeal judgments in the lao cases. the malaysian high court's opinion, in that case, has the closest approach to a discussion of how article 34(3) might be understood. malaysia's local counterpart to article 34(3) of the model law is included in section 37(4) of the arbitration act 2005. it is outlined that an application for setting aside may not be made after the expiry of ninety days from the date on which the party making the application had received the award or if a request has been made under 96 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … section 35, from the date on which the arbitral tribunal had disposed of that request.52 hamid sultan concluded that the wording of section 37(4) of the arbitration act was a guideline rather than a requirement but did not explain how he arrived at that result.53 the court of appeal also resolved the textual issue by agreeing with the high court that malaysian courts had jurisdiction to extend the satp based on section 37(4) of the arbitration act 2005 and declined to explain why and how they concluded it.54 unfortunately, the high court and court of appeal did not conduct a textual examination of the phrase 'may not' as it occurs in article 34 (3) of the model law. it is worth noting that the singaporean case of abc v. xyz, which directly addresses this textual issue, was not cited in the court of appeal's conclusion.55 it is perplexing because the lawyers presented abc v. xyz at the high court stage.56 this case was not brought to the notice of the court of appeal. since even if it were, it is unlikely that it would have convinced the court in any case since the court of appeal seems to have rejected the notion that foreign judgments interpreting the model law's text should be persuasive on malaysian courts. in contrast to the lao cases, yusof cited abc v. xyz favorably in his j.h.w. reels judgment.57 yusof decided that the word 'may' in section 37(4) of the malaysian arbitration act has to interpret as 'must' or 'shall' since the clause could not fairly be interpreted as a pure directory.58 yusof said that he '[did] not see why the malaysian approach to the same broad issue should be different [from the singapore position].'59 although yusof addressed and opposed hamid sultan's competing interpretation of section 37(4), his lordship did not refer to the lao court of appeal ruling that 52 arbitration act 2005, s. 37(4). 53 lao high court, supra note 13 at 15. 54 lao court of appeal, supra note 13 at 14. 55 in contrast, the indian supreme court cited abc v. xyz favorably in p. radha bai v. p. ashok kumar. 56 lao high court, supra note 13 at 13. 57 jhw, supra note 17 at 21. 58 ibid at 23. 59 ibid. 97 | indonesian journal of law and society supported hamid sultan's reading. while this is not confirmed, the lao court of appeal ruling was probably not presented to yusof. on the other hand, abc had a minor influence on yusof's study. his lordship relied heavily on the legislative interpretation principle of expressio unius est exclusio alterius to establish that the satp was rigid and could not be extended by the courts. while the canon of expressio unius est exclusio alterius may be invoked in various circumstances, yusof noted that article 34 of the model law made no exceptions to the satp. in contrast, section 37(4) of the malaysian arbitration act 2005 created two express exceptions for fraud and corruption.60 while it was not stated directly, yusof's rationale was undoubtedly that, since the domestic malaysian act had apparent exceptions to the satp, all other plausible reasons for exceptions had to be impliedly prohibited. although this was an elegant solution to the problem, it would apply only to countries that made local adjustments to the model law and not to jurisdictions that accepted it. finally, mary lim used a different method in her kembang serantau decision, doing a deep linguistic examination. lim highlighted that the term 'may' might be interpreted to 'connote the difference between the concept of mandatory and directory requirements.'61 however, considering the purpose of section 37(4) of the malaysian arbitration act 2005, her ladyship construed the word 'may' in that provision as a requirement, saying that the provision's sentence structure did not allow the use of the more precise word 'shall.'62 the malaysian court of appeal maintained the kembang serantau verdict in an unreported judgment with no written reasons.63 it is unclear how much impact it will have on the evolution of malaysian law. the author proposes that clarification from the malaysian federal court would clarify the proper interpretation of the term 'may not' in section 37(4) of the malaysian arbitration act 2005. 60 ibid at 19; joseph klingler, yuri parkhomenko, & constantinos salonidis, between the lines of the vienna convention?: canons and other principles of interpretation in public international law (alphen aan den rijn: kluwer law international, 2019). 61 kembang serantau, supra note 19 at 29. 62 ibid. 63 kembang serantau sdn bhd v. jeks engineering sdn bhd (court of appeal civil appeal no. w-02(im)(c)-1769-10/2015) (unreported). 98 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … 2. hong kong in sun tian gang, the hong kong court of first instance specifically analyzed this matter and concluded that the phrase 'may not' placed discretion on the court to prolong the satp. section 81(3) of the hong kong arbitration ordinance is the appropriate provision for adopting article 34(3) of the model law since it explicitly reproduces the content of article 34. (3). the following is a summary of section 81(3) of the hong kong arbitration ordinance for convenience: 'no application for reversal may be submitted after three months have passed from the date the party making the application received the award or if a request under article 33 was made, from the date on which the arbitral tribunal decided on that request.'64 mimmie chan concurred with counsel's argument that the word 'may' in article 34(2) of the model law placed discretion on the court, reasoning that the discretionary element in article 34(2) was 'retained in and extended to' article 34. (3).65 article 34(3)'s statement 'an application for setting aside may not be submitted after three months' meant that such an application could not be made only if the court did not use its authority to grant an extension of the satp.66 however, the right interpretation of 'may not' was not reviewed in chan's subsequent ruling in a. and others v. d. her ladyship essentially reiterated her position in sun tian gang that hong kong courts have the discretion to prolong the satp.67 3. singapore in contrast to hong kong and malaysia, the singapore courts have consistently held that the phrase 'may not' in article 34(3) must be understood as having a statutory effect, thereby eliminating any choice over the extension of the satp. in abc v. xyz, prakash said unequivocally that the term 'may not' must be understood as 'cannot' to give effect to the 64 hong kong arbitration ordinance, s. 81(3). 65 sun tian gang, supra note 25 at 90. 66 ibid. 67 ibid. 99 | indonesian journal of law and society evident aim to restrict the time within which an award may be appealed.68 prakash's remarks were cited with approval by lee seiu kin in pt pukuafu, who agreed that while the word 'may' frequently conveys some degree of discretion in contrast to the mandatory 'shall,' 'may not' is mandatory and imposes a time bar in the context of article 34 of the model law.69 in bxs v. bxt, reyes said, 'it is hard to read "may not" as anything other than a mandatory restriction.'70 roger giles (a former judge of the new south wales court of appeal) referred favorably to the textual analysis in bxs v. bxt and its conclusion that 'may not' must be interpreted as imposing a mandatory time limit in the subsequent case of bxy v. bxt (also in the singapore international commercial court). finally, in bloomberry sgca, the singapore court of appeal resolved the issue. it held that 'the position taken in singapore has consistently been article 34(3) prevents a court from entertaining applications brought under article 34 after the expiry of the [satp].' also, it reaffirmed a string of singaporean decisions that had strictly interpreted article 34(3y).71 the singapore court of appeal acknowledged that the model law's travaux préparatoires supported a rigorous construction of article 34(3).72 4. new zealand the new zealand courts have not had the chance to conduct a detailed textual examination of the meaning of 'may not' in section 34(3) of arbitration act 1996, because the question of the strictness of the satp has not yet been the principal subject of a judicial case. however, given the new zealand court of appeal's declaration that the satp is 'firm in the sense that there is no discretion to extend it,' it may be reasonable to conclude that a new zealand court would take the same stance as the singapore courts.73 68 abc co. v. xyz co. ltd., supra note 7 at 9. 69 pt pukuafu indah v. newmont indonesia ltd., supra note 9 at 30. 70 bxs v. bxt, supra note 11 at 37. 71 bloomberry sgca, supra note 12 at 81. 72 ibid. 73 todd petroleum mining v. shell (petroleum mining), supra note 39 at 57. 100 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … 5. australia the proper interpretation of 'may not' does not figure prominently in the reasoning of the australian courts in the relevant case law. whether the satp exists has never been a point of contention in australian case law.74 although stewart noted (obiter) in the sharma case that courts may not extend the satp, the court reached this result without conducting a textual examination of article 34(3) of the model law.75 6. india in 2001, the indian supreme court declared in union of india v. popular construction co. that the satp specified in section 34(3) of the indian arbitration and conciliation act 1996 is 'absolute and non-extendable outside of the circumstances specified in the indian act.76 in 2018, the indian supreme court case p. radha bai v. p. ashok kumar (99) referenced the singapore decision abc v. xyz (100), supporting the understanding that 'may not' must be interpreted to imply 'cannot be made.'77 additionally, the indian supreme court applied a holistic interpretation to section 34(3) of the indian arbitration and conciliation act 1996. section 34(3) of the indian act specifies that a court may hear a late application 'but not afterward' thirty days after the satp. in p. radha bai, the indian supreme court concluded that it could not accept an appeal to vacate an award beyond the additional thirty days explicitly granted, as doing so would make the statutory term 'but not subsequently' meaningless. this court has repeatedly held that the words 'but not thereafter' in section 34(3) of the arbitration act's proviso are required and written in negative terms, leaving no room for mistake.78 74 sharma v. military ceramics corp., supra note 34 at 48. 75 ibid at 49. 76 union of india v. popular construction co., supra note 50 at 63. 77 p. radha bai v. p. ashok kumar, supra note 51 at 34(c); union of india v. popular construction co., civil appeal no. 7710-7713 of 2013. 78 p. radha bai v. p. ashok kumar, supra note 51 at 34(c), 36-37. 101 | indonesian journal of law and society b. analysis of interpretation of statutes while the majority of the jurisdictions examined above accept that the phrase 'may not' is mandatory and precludes courts from extending the satp (singapore, new zealand, australia, and india), a minority of jurisdictions have interpreted 'may not' as conferring discretion on the court to extend the satp. academics seem to have a different grammatical interpretation of the word 'may not' in article 34 (3). lew, mistelis, and kröll, as well as margaret moses, seem to argue that the word 'may' in article 34(3) means that the courts have discretion.79 on the other hand, gary born asserts that the term is necessary and that an application must be submitted within three months.80 peter binder adopts a similar position, stating that 'any grounds for setting aside the award that emerges after the three-month time limit has expired cannot be raised,'81 simplifying issues further by focusing on the context of the provision. it is reasonable to assert that the phrase 'may not' may be interpreted as either discretionary or necessary, depending on the context in which it occurs.82 for instance, in the line 'he may not be able to join us for lunch,' the context demonstrates that 'may not' has a speculative, not an obligatory, meaning. when a senior partner instructs his student that he 'may not' leave the office until he delivers his draught memorandum, one would think that the trainee is astute enough to see that the command goes him with no option but to comply. similarly, the singapore courts have repeatedly held that the plain sense of the phrase 'may not' is a required prohibition. this paper argues that reyes's critique of the rationale in sun tian gang, found in bxs v. bxt, is convincing.83 in the latter instance, chan 79 margaret l moses, principles and practice of international commercial arbitration, 3rd ed. (cambridge university press, 2017) at 222; julian d m lew, loukas a mistelis, & stefan kröll, comparative international commercial arbitration (the hague; new york; frederick, md: kluwer law international, 2003) at 25–26. 80 gary b born, international commercial arbitration / volume iii, international arbitral awards (alphen aan den rijn: kluwer law international, 2014) at 25.08[a]. 81 peter binder, international commercial arbitration and conciliation in uncitral model law jurisdictions (alphen aan den rijn, netherlands: kluwer law international, 2019) at 451– 452. 82 kembang serantau, supra note 19 at 24; sun tian gang, supra note 25 at 32. 83 bxs v. bxt, supra note 11 at 31. 102 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … determined that the discretion provided by article 34(2)'s word 'may' should be 'retained in and extended to' article 34(3)'s word 'may not.'84 as reyes points out, article 34(2) and (3) allude to distinct powers the court has (or does not have) under article 34. article 34(2) of the model law specifies the grounds for the annulment of an award. they include incapacity, invalidity, failure to provide adequate notice, the inability of a party to present its case, and exceeding the scope of the arbitration agreement. in addition, they also cover procedural deviation from the arbitration agreement, non-arbitrability of subject matter, and public policy. the term 'may' in article 34(2) refers to the court's discretion not to set aside an award notwithstanding the fulfillment of one or more of the applicable circumstances. the term 'may not' in article 34(3) relates to when a court may or may not consider an application to extend the satp. these are two distinct concerns. it is respectfully argued that the meaning of the word 'may' in article 34(2) cannot logically affect the interpretation of the word 'may not' in article 34(3). it is also worth noting that the singapore court of appeal concurred totally with reyes in its recent bloomberry sgca decision.85 additionally, article 2a of the model law has legal effect in hong kong due to its incorporation into section 9 of the arbitration ordinance (cap. 609).86 for convenience, article 2a is reproduced below: 'in the interpretation of this law, regard is to be had to its international origin and the need to promote uniformity in its application and the observance of good faith. questions concerning matters governed by this law which are not expressly settled in it are to be settled in conformity with the general principles on which this law is based.'87 mimmie chan did not examine the impact of this clause, which may have added the desire of general interpretation harmonization to the list of reasons weighing on her ultimate conclusion on the meaning of 'may not.' 84 sun tian gang, supra note 25 at 90. 85 bloomberry sgca, supra note 12 at 88. 86 hong kong arbitration ordinance, s. 9 provides that article 2a of the model law has the force of law in hong kong. 87 hong kong arbitration ordinance, article 2a. 103 | indonesian journal of law and society chan was not constrained by local precedent on this issue. hebei import & export corp.'s earlier hong kong litigation involved interpreting a different part of the model law (specifically, article 34(2)). it is contended that chan may have found that the hong kong courts lack the discretion to extend the article 34(3) satp on balance. mimmie chan addressed sun tian gang in three consecutive judgments in writing, including a. and others discussed above.88 although she separates sun tian gang from the immediate fact pattern in all three circumstances, her ladyship does not regret her sun tian gang choice. indeed, in a. and others, mimmie chan explicitly stated that courts do have the option to extend the satp. her ladyship did accept that whether hong kong courts had the authority to prolong the setting-aside moment period would need to be resolved 'in another case at an opportune time,' hinting that the situation had not been resolved definitively.89 in suitable cases, a higher court may evaluate whether article 34(3) of the model law vests hong kong courts with broad power to prolong the satp. in the case of malaysia, as previously shown, the malaysian perspective on the proper textual reading of 'may not' is ambiguous at the time of writing. while the lao court of appeal ruling indicates that malaysian courts have the authority to extend the window time, the court did not conduct a thorough textual examination in that instance. additionally, at least three written high court decisions contradict the lao court of appeal's ruling yet were effectively authorized by the court of appeal. in the future, the lao judgment will be limited to its peculiar circumstances, and subsequent cases will err on the side of the rigorous application of the satp. finally, apart from its linguistic merits, the view that domestic courts lack the authority to prolong the satp is reinforced by the model law's travauax préparatoires. when drafting article 34 of the model law, uncitral's eighteenth session decided against allowing parties to agree on a different amount of time for the satp.90 it may be deduced 88 the other two cases are ab v. cd, [2021] hkcfi 327, and u. v. s., [2018] hkcfi 2086. 89 a. and others v. d., supra note 28 at 10. 90 uncitral, supra note 5 at 304. 104 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … that commercial certainty was prioritized above party autonomy in this instance. it would be absurd for uncitral to consider that domestic courts (and the myriad of domestic procedural procedures that accompany them) should be capable of modifying the satp, notwithstanding the parties' inability to do so. therefore, the most convincing linguistic reading of 'may not' is that it has an obligatory effect and does not confer power on the courts to extend the satp. however, the paper does not stop here to indicate that statutory interpretation may not be the primary determining element in determining whether or not the satp is eventually extended in any individual instance. the situation in england and wales serves as an instructive case study. an application to set aside an award must be brought within 28 days after the award's date under section 70(3) of the english arbitration act 1996. 'must' is more explicit in its obligatory consequence than 'may not.' at the risk of overstating the case, a linguistic definition of 'must' that attempted to confer any degree of choice would be highly strained. however, it is accurate only on an isolated reading of section 70(3). the english courts are statutorily compelled to use the domestic rules of the court of england and wales about the time restrictions outlined in part i of the english arbitration act 1996, including the satp. whether the wording of the satp is required or discretionary vanishes in the light of the duty to follow domestic court regulations. this example demonstrates that, depending on how the model law is implemented in individual jurisdictions, there is a complex relationship between the statutory interpretation of 'may not' and the question of whether courts are permitted to seek extrinsic sources of authority to extend the satp. while courts interpret 'may not' as bestowing discretion on them, they are not having to look for a provision of domestic law authorizing an extension of the satp. if, however, they interpret 'may not' as generally stringent, they may then evaluate whether, in the alternative, there are extrinsic sources of authority that might bestow discretion on them, notwithstanding their interpretation of article 34(3) of the model law. alternatively, if a court determines that a domestic source of authority is appropriate, it may conclude that no textual interpretation of 105 | indonesian journal of law and society 'may not' is necessary. the correct link between the model law and other domestic sources of curial authority is critical in determining whether a court has the discretion to prolong the satp. c. restricting provision one factor that some courts consider in determining whether they have the authority to extend the satp is the effect of either article 5 of the model law. otherwise, it is an equivalent domestic provision limiting the court's power to intervene in arbitrations to only those matters expressly provided for in the arbitration statute (restricting provision). every jurisdiction governed by the model law has some kind of a restricting provision.91 the restricting provision is the legal manifestation of the model law's idea of limited judicial action. countries are, of course, free to add caveats and exceptions to the general restricting provision, and many do, particularly where doing so makes sense in light of the model law's adoption process. singapore, for example, adopts the model law by adding the complete language of the model law as an annex to its international arbitration act, which includes a clause declaring that the model law has the effect of law subject to the provisions of that act. other jurisdictions, by contrast, have just their national arbitration legislation, the aim of which is directly inspired by the model law. nevertheless, even if there are no such caveats to the restricting provision, it is a statutory provision (in the model law jurisdiction). generally, the legal view is that a restricting provision applies to the degree that the national arbitration legislation does not explicitly allow for other avenues for judicial intervention in arbitration proceedings. however, none of the nations examined in this article have an explicit provision in their national arbitration statutes for judges to prolong the satp. it is sufficient for the reader to accept that an extrinsic source of law to the national arbitration statute and/or model law that grants the court broad discretion to extend procedural time limits conflicts with the effect of a restricting provision. 91 richard garnett, “article 5 of the model law: protector of the arbitral process?” (2021) 38:2 journal of international arbitration 127–146. 106 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … when courts interpret the wording of the satp as generally stringent but yet find themselves with authority to extend it, they must do so following another provision of domestic law. its rationale is that the model law does not allow for such a power in article 34 (nor does any equivalent arbitration statute). typically, national courts are afforded the extensive procedural authority to extend time constraints to administer justice in specific instances. the astute reader will see that discretion provided by domestic legislative provisions (which are not inherent in the arbitration law or model law) is typically incompatible with any restricting provision. according to uncitral's 1985 report on its eighteenth session, article 5 of the model law aims to achieve the maximum extent of judicial intervention in international commercial arbitration by compelling the drafters to list all instances of court intervention in the model law.92 accepting the implies above that the impact of a restricting provision should bear considerable, if not critical, weight in determining whether courts have authority to extend the satp. however, the courts in most of the countries covered in this article did not give this matter considerable thought. consequently, many of them extended the satp by relying on domestic statute provisions and/or procedural court rules. 1. malaysia malaysia adopted the model law through what peter binder refers to as 'direct adoption.'93 it indicates that malaysia has adopted local law, the content of which is strongly influenced by the model law. malaysia's interpretation of article 5 of the model law is included in section 8 of the malaysian arbitration act 2005, which states that no court shall intervene in matters governed by this act, except where so provided in this act.94 before the 2011 modifications to the malaysian arbitration act 2005, section 8 of 92 uncitral, supra note 5 at 63. 93 peter binder, supra note 82 at 25. 94 malaysian arbitration act 2005, s. 8. 107 | indonesian journal of law and society that act outlines, 'unless otherwise stipulated, no court shall interfere in any matters governed by this act.'95 binder argues that 'direct adoption' of the model law promotes additions and changes to the legislative language, supported by the disparities between the wording of the deleted version of section 8 and article 5 of the model law.96 this textual change may have been significant, as an objectively reasonable person could reasonably have interpreted the pre2011 section 8 of the malaysian arbitration act 2005 to mean that courts may intervene in matters governed by that act if expressly provided for elsewhere outside the act. it seems to have been a central premise in both the lao high court and lao court of appeal verdicts. hamid sultan said in the malaysian high court that 'limited discretion [to amend the satp] is vested [in the courts] under various statute [sic] and/or rules of court.'97 similarly, the court of appeal upheld the high court's conclusion that malaysian courts had the authority to extend the satp. the court of appeal relied on item 8 of the schedule to the malaysian courts of judicature act 1964, as well as order 3 rule 5(1) and (2) of the domestic rules of the high court 1980, which both empower malaysian courts to extend or shorten time restrictions set by 'any written law.'98 the malaysian court of appeal determined that the malaysian arbitration act 2005 did not limit the court's broad authority to consider requests for extensions of time.99 additionally, the court of appeal defended its discretion to extend the satp by pointing out that neither the model law nor section 37 of the malaysian arbitration act 2005 expressly prohibited extending the satp.100 the dicta in the lao cases imply that the restricting provision's (section 8 of the malaysian arbitration act 2005) implications were not 95 these amendments were effected by the malaysian arbitration (amendment) act 2011. 96 peter binder, supra note 82 at 26. 97 lao high court, supra note 13 at 15. 98 lao court of appeal, supra note 13 at 14. 99 ibid at 31. 100 ibid. 108 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … fully explored.101 with due respect, this stance contradicts the intent of article 5. rather than beginning with the assumption that the court has a general power to extend time derived from domestic law, searching for prohibitions in the model law, it is submitted that the proper line of reasoning must begin with the assumption that the court has no power to intervene. unless and until such power is found in the model law or relevant statute adopting the model law. in comparison, section 8 of the malaysian arbitration act 2005 played a significant role in the rationale for the three malaysian judgments that seem to contradict the lao case. yusof concluded in j.h.w. reels that section 8 included the idea of limited judicial participation in arbitral proceedings, which supported his conclusion that the satp was stringent.102 mary lim's reasoning in kembang serantau was also influenced by section 8 of the malaysian arbitration act 2005. lim said that the 'significance of s. 8 [sic] could not be overstated,' and the court 'ought to decline intervention even if the court would treat the matter differently if it were a non-arbitration matter.'103 lim noted that section 8 might have been overlooked by the court of appeal in lao and if it had been, it would have had a significant impact on the conclusion.104 her ladyship further called attention to the fact that section 8 had been revised in 2011 to more closely match the wording of article 5 of the model law and that these adjustments may not have been in effect when the court of appeal resolved the lao case.105 in the judgment of lim, these two elements were sufficient reasons to reverse the court of appeal's ruling in lao. lim's other comments may doubt whether her ladyship believed that section 8 of the malaysian arbitration act 2005 required the court to refrain from intervening or whether it was simply inappropriate for the court to intervene. her ladyship's resounding recognition of the importance of section 8 is already a step in the right direction in comparison to the court of appeal's judgment in lao. 101 ibid at 15. 102 jhw, supra note 17 at 18. 103 kembang serantau, supra note 19 at 30. 104 ibid at 23. 105 peter binder, supra note 82 at 26. 109 | indonesian journal of law and society mohd yazid bin mustaffa made a more conclusive ruling in triumph city. he concluded that section 8 of the malaysian arbitration act 2005 did not permit the court to intervene in any of the matters governed by the act unless it provides otherwise,' and that the court's inherent jurisdiction could not be used to intervene in any matter covered by the act.106 the malaysian court of appeal sustained mustaffa's ruling in an unpublished judgment without providing written reasons.107 the same reasons applied when the malaysian court of appeal affirmed the high court's ruling in kembang serantau. 2. singapore under the singapore international arbitration act, article 5 of the model law has legal effect in singapore.108 the significance of article 5 was infrequent in the earlier singapore trials. however, this changed when reyes examined the ramifications of article 5 in his bxs v. bxt decision. according to reyes, article 5 implied that the model law, which had the force of law in singapore, was intended to be self-contained. therefore, he had no authority to interfere by extending the satp by using a power not included in the model law.109 while the paper concurs with reyes's actual conclusion, a minor difficulty arises that reyes focused on whether a statutory power unrelated to the singapore international arbitration act/model law was applicable, implying the possibility that an unrelated power could be relevant to the analysis. it is no doubt because counsel made such arguments in their submissions. to summarise, one of the arguments advanced, in this case, was that the singapore supreme court of judicature act (cap. 322) empowered singapore courts to: 106 triumph city, supra note 22 at 4. 107 selangor state government v. triumph city development sdn bhd, (court of appeal civil appeal no. b-01(im)(ncc)-48-02/2017) (unreported). 108 singapore international arbitration act (cap. 143a), s. 3(1). 109 bxs v. bxt, supra note 11 at 40. 110 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … 'extend or shorten the time prescribed by any written law for performing any act or initiating any proceeding, whether the application is made before or after the time prescribed has expired, but this provision shall be without prejudice to any written law relating to limitation.'110 for reyes, the issue was whether article 34(3) constituted a 'written law related to limitation.' if it were the case, the court's broad authority to extend time under the supreme court of judicature act would be null and void. after a thorough examination, reyes determined that article 34(3) constituted a 'written law on limitation' and came inside the legislative exemption to the court's broad jurisdiction to extend time.111 while a restricting provision has the force of law and applies to the circumstances, there is logically no need to conduct a detailed examination of whether an extraneous authority may be used to allow courts to interfere in arbitrations. assuming arguendo, the issue indeed turned on the language of the statutory provision granting singapore (and malaysian) courts their general power to extend time. it would mean that absent the 'written law without limitation' exception, curial intervention in arbitration would be justified, despite a restricting provision with legal force. with all due respect, that cannot be the case. whether or not the courts may interfere in arbitration cannot be determined on the whims of domestic statute wording. indeed, this kind of circumstance was meant to be avoided by article 5 of the model law. as previously stated, article 5 precisely defined the events under which a national court may interfere in an arbitration. the objective of attaining certainty is thwarted to the degree that the range of circumstances in which courts may interfere in arbitrations is contingent on domestic statutory laws' survey (and statutory interpretation of the meaning). while concurring with reyes's conclusion, article 5 of the model law precluded him from invoking an extraneous power to extend the satp. it respectfully suggests that article 5 considerations should have preceded the 110 singapore supreme court of judicature act (cap. 322), first schedule, para. 7. 111 bxs v. bxt, supra note 11 at 39. 111 | indonesian journal of law and society analysis of the singapore supreme court of judicature act, as the former would have obviated the latter. as an aside, the singapore court of appeal in bloomberry did not seem eager to use a restricting provision approach when confronted with arguments based on domestic law requirements. on appeal, the appellants in bloomberry contended that section 29(1) of the singapore limitation act (cap. 163) applied, which allowed suspension of a limitation period when a cause of action was disguised via deception.112 the singapore court of appeal rejected this argument without referring to article 5 of the model law's restricting provision. rather than that, the court elected to confront those arguments directly in the domestic law arena, as it were, and rejected the limitation act's application based on its clear language.113 while acknowledging that courts are typically limited to considering arguments advanced by counsel, the success or failure of arguments seeking to expand the court's powers to intervene in arbitration cannot be determined by the language of domestic statutory provisions. rather than that, such claims must be rejected based on a clear interpretation of the applicable restricting provision. the inescapable conclusion is that there can be no source of legal authority outside of the model law authorizing courts to interfere in arbitrations. 3. hong kong article 5 of the model law has legal effect in hong kong under section 12 of the hong kong arbitration ordinance. unfortunately, mimmie chan did not evaluate this clause in sun tian gang. chan relied extensively on the hong kong high court rules in her analysis. her ladyship concluded, somewhat ambiguously, that while order 73 rule 5 of the hong kong rules of the high court did not directly relate to a satp, the only appropriate satp was the one set out in article 34(3) of the model law as enacted by hong kong.114 according to chan, the only reason the hong kong rules of the high court did not supersede the 112 bloomberry sgca, supra note 12 at 83. 113 ibid. 114 sun tian gang, supra note 25 at 91. 112 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … model law was a linguistic quirk, namely the absence of an explicit reference to the satp in the hong kong rules of the high court.115 it is again contended that, if correctly accounted for, section 12 of the hong kong arbitration ordinance would have barred any study of domestic court procedures. additionally, chan tried to separate the current case from an earlier singapore case, abc v. xyz, because the hong kong rules of the high court did not specifically refer to a satp, but the singapore rules of court did. apart from the argument above that the restricting provision makes it unsuitable for assessing the significance of domestic court norms, the reasoning of chan is dubious for a variety of other reasons. prakash did not base her finding on the proper reading of 'may not' in article 34(3) on the singapore rules of court.116 then, after prakash's judgment, the singapore rules of court revised to reconcile the wording of the provision alluded to by chan with the language of model law article 34(3), and no one has contended that prakash's decision is now bad law.117 third, it is unclear whether subsidiary law may impact the interpretation of or supersede provisions in primary legislation.118 for the reasons mentioned above, this paper contends that the sun tian gang judgment did not fully evaluate the consequences of section 12 of the hong kong arbitration ordinance. much too much emphasis was put on the wording of domestic court procedures that were irrelevant in any case. 4. india the case law in india indicates that the indian courts are cognizant of the ramifications of section 5 of the indian arbitration and conciliation act 1996, which is a restricting provision. the text of section 5 states: 115 ibid. 116 abc co. v. xyz co. ltd., supra note 7 at 9. 117 ibid. 118 bxs v. bxt, supra note 11 at 31; bloomberry sgca, supra note 12 at 24. 113 | indonesian journal of law and society 'notwithstanding anything contained in any other law for the time being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this part.'119 in popular construction co., the supreme court considered whether it could exercise its broad procedural authority to grant an extension of time to allow for the filing of a setting-aside application made outside the satp prescribed by the indian arbitration and conciliation act 1996.120 the supreme court concluded that section 5 of the indian arbitration and conciliation act 1996 clearly defined the scope of permissible judicial involvement, concluding that judicial review of an arbitral judgment could not be brought beyond the time frame in section 34 of the indian act.121 d. analysis of restricting provision after considering two critical considerations in determining whether the satp should be prolonged by curial discretion, this paper believes that article 5 of the model law is the more critical. when a jurisdiction has passed a restricting provision, the courts should consider themselves excluded from establishing a legal basis for intervening in arbitrations governed by the model law and/or national arbitration legislation. with that avenue closed to the courts, a judge desiring to prolong the satp would have to locate a clause in the model law or national arbitration legislation conferring such authority on them. a jurisdiction that does adopt a legislative provision providing for a discretionary extension of the satp is unlikely to be called a model law jurisdiction. as previously stated, the bulk of case law makes only a cursory examination (if at all) of the impact and significance of a restricting provision. it is regrettable since a restricting provision enables courts to prohibit arguments based on legal sources other than the model law or local arbitration legislation, such as domestic court norms or procedural law. 119 arbitration and conciliation act, 1996, s. 5. 120 union of india v. popular construction co., supra note 50 at 5. 121 ibid. 114 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … this line of analysis resolves all questions regarding whether any particular domestic statutory provision or procedural rule that is not covered by the model law or domestic arbitration legislation would be applicable to confer on courts the discretion to extend the satp. it would simplify the matter by limiting the courts' considerations to interpretive and policy concerns, which should be welcomed. e. policy implications finally, courts may consider policy factors when determining whether or not to use their authority to prolong the satp. in some cases, courts have used policy reasons as a rationale for their judgment, either as a major or secondary cause. it moves to a short examination of the two policy issues that have dominated the case law and the findings reached by the courts. 1. restraining the judiciary new zealand and australian judgments reflect policy concerns about judicial restraint. in opotiki, the new zealand court of appeal said that 'the whole scheme of the [model law] rules [was] to restrict court review of arbitration awards both to grounds and time.'122 in the subsequent case of downer-hill, the new zealand high court determined that allowing an amendment that created new grounds for the challenge would be contrary to the spirit of the opotiki judgment.123 in emerald grain, the federal court of australia said that if parties were not precluded from relying on settingaside reasons that they had not fully argued within the satp, the policy of maintaining arbitral awards would be jeopardized.124 finally, in sharma, the federal court of australia referenced opotiki's explanation of the model law's underlying principle favorably, concluding that it 'support[ed] the proposition that the court lacks the power to extend the time in [article 122 opotiki packing & coolstorage v. opotiki fruitgrowers co-operative, supra note 36 at 19, 220. 123 downer-hill joint venture v. fijian government, supra note 37 at 31, 62. 124 emerald grain australia v. agrocorp international, supra note 32 at 8. 115 | indonesian journal of law and society 34(3)]'.125 turning to malaysia, mary lim in kembang serantau likewise recognized the concept of limited curial interference in arbitration proceedings.126 her ladyship alluded favorably to hamid sultan's observation in a lao high court judgment that judicial opinion should be slanted toward minimal court interference in cases regulated by the arbitration act 2005.127 lim seemed to approach the problem from a policy perspective since her ladyship reasoned that the court did not lack jurisdiction to interfere. rather, the court chose to reject jurisdiction to respect the concept of party autonomy.128 finally, mustaffa made the following observations in triumph city on the concepts behind the parties' choice of arbitration as a dispute settlement procedure (165): 'the idea of undergoing arbitration process [sic] is to cut costs and time. the parties will not be undergoing lengthy court trials [sic], which certainly consumes a great amount of money as well as a lengthy process [sic]. if the parties are allowed to go to court to challenge arbitration awards even if it is made out of time [sic], then there is no point for the parties to have undergone arbitration process [sic].' however, in its lao court of appeal judgment, the malaysian court of appeal evaluated and rejected the concept of minimal court interference.129 although the malaysian arbitration act 2005 seems to have 'recognized' the model law, the act in no way diminishes the court's authority to deal with any application for extension of time.130 as a result, it is unclear whether malaysian courts favor or oppose a policy of judicial restraint. finally, the indian matter of p. radha bai v. p. ashok kumar in 2018 indicates that indian courts put a high premium on policy considerations.131 the indian supreme court concluded that excluding a provision of indian limitation law was necessarily implied when one [looked] at the scheme 125 sharma v. military ceramics corp., supra note 34 at 50. 126 kembang serantau, supra note 19 at 29. 127 ibid.; lao high court, supra note 13 at 13. 128 lao high court, supra note 13 at 13. 129 lao court of appeal, supra note 13 at 31. 130 ibid. 131 p. radha bai v. p. ashok kumar, supra note 51. 116 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … and object of the arbitration act.132 among the grounds for its decision, the supreme court noted that the indian arbitration and conciliation act 1996's overarching purpose of expeditious settlement of disputes weighed against the use of the broad procedural authority to extend time.133 additionally, the court determined that adopting the indian limitation act 1963 would create ambiguity about the execution of arbitral judgments, which would go against the scheme and purpose of the indian arbitration and conciliation act 1996.134 finally, the court emphasized that enabling the indian limitation act 1963, would violate the model law's requirement that the satp be absolute.135 2. justice on the other hand, one policy issue that can encourage a court toward exercising discretion and extending the satp is that the factual circumstances surrounding particular instances may beg for justice. justice is a vague idea that seldom appears explicitly as a basis for extending the satp since it is not a source of law. however, courts may demonstrate their intention to do justice in specific situations overtly or implicitly in their reasoning. when the term 'justice' appears in case law, it typically means that a court has already relied on other legal rules to determine that it does have the authority to extend the satp and is now depending on the amorphous concept of justice to justify exercising the discretion it has already decided it has. it was the situation in the malaysian lao court of appeal verdict. the malaysian court of appeal determined no constraints on its general power to extend the time for procedural concerns. it had 'the broadest measure of discretion when deciding whether to prolong the satp. the court indicated that it would 'recognize the overriding principle that justice must be done in exercising its discretion in favor of the petitioner.'136 132 ibid at 38. 133 ibid at 39. 134 ibid at 40. 135 ibid at 41-42. 136 lao court of appeal, supra note 13 at 18. 117 | indonesian journal of law and society while not explicitly mentioned in the ruling section analyzing the court's authority to prolong the satp, doing justice was probably on mimmie chan's mind in sun tian gang. the details of the case have been discussed in-depth above. they suggest a suitable candidate for an extension of the satp, if nothing else. to be precise, chan evaluated the plaintiff's condition solely as a secondary consideration in determining whether to utilize her curial discretion to prolong the satp. however, for such discretion to exist, she would have first to discover that she had such power, which she did. as a counter-example, the singapore court of appeal in bloomberry scga rejected the idea that not extending the satp in fraud and/or corruption situations would be unreasonable.137 the singapore court of appeal held that an applicant who failed to apply within the satp to set aside a fraudulent judgment was not without recourse; such a party might petition to prevent implementation of the award, as was done in bloomberry scga. (176). 3. analysis of policy considerations commercial certainty and fairness have long been acknowledged as conflicting purposes in the common law. the contradiction between these two admirable objectives is evident in the judicial reasoning about the satp. numerous model law countries incorporate the model law's policy concerns into the broader problem of a provision's correct construction. singapore, australia, and new zealand all have clear provisions in their arbitration statutes that allow (but do not require) judges to consider the model law's drafting history when interpreting the model law.138 hong kong has adopted a nearly identical provision, requiring its courts to resolve 'questions concerning matters governed by [the model law] which are not expressly settled in it in conformity with the general 137 bloomberry sgca, supra note 12 at 97. 138 see singapore’s international arbitration act (cap. 143a), s. 4(1); australia’s international arbitration act, 1974, s. 17(1); new zealand’s arbitration act, 1996, s. 3. 118 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … principles on which [the model law] is based.'139 it eliminates the possibility of free-form policy reasoning and imposes some legal structure on judicial decisions in these jurisdictions. it may also provide judges with a particular policy agenda to advance that agenda by searching for appropriate justification in the model law's vast works. v. conclusion in some common law nations, including model law jurisdictions, the courts have assigned that the time restriction for applying to set aside an arbitral award (referred to as the satp) is approximately three months. courts have also concluded that the phrase 'may not' gives them the discretion to extend the satp, and they have overlooked the implication of article 5 of the model law (or an equivalent domestic provision), which limits the curial power to intervene in arbitrations to that expressly provided for in the arbitration statute. behind these legal arguments, fairness and commercial certainty notions played a significant role in judges' minds. additionally, courts have adopted various responses to frequently seen arguments advanced by parties seeking to set aside an award after the satp has expired. arbitration parties would be wise to at least for arbitrations seated in singapore, australia, new zealand, ireland, canada, and india. prospective plaintiffs will almost certainly be barred from bringing a setting-aside application three months after the arbitral award is rendered, regardless of how deserving their particular circumstances may be. in many jurisdictions, the term 'may not' really means 'cannot.' however, opposing enforcement's 'consolation prize' may still be available to a delayed aggrieved party, depending on each jurisdiction's domestic procedural rule and (almost likely) on whether they have a legitimate justification for the delay. 139 hong kong arbitration ordinance, s. 9. 119 | indonesian journal of law and society acknowledgments i would like to thank sheel agarwal and shaurya mahajan for my assistance while writing this article. all errors are my own. competing interests the author declared that he has no conflict of interests. references adriano, elvia, “commercial arbitration: its harmonization in international treaties, regional treaties and internal law” (2009) 27:3 penn state international law review. bell, gary f, the uncitral model law and asian arbitration laws (new york: cambridge university press, 2018). binder, peter, international commercial arbitration and conciliation in uncitral model law jurisdictions (alphen aan den rijn, netherlands: kluwer law international, 2019). blackaby, nigel et al., redfern and hunter on international arbitration (oxford university press, 2015). born, gary b, international commercial arbitration / volume iii, international arbitral awards (alphen aan den rijn: kluwer law international, 2014). dm lew, julian, et al., comparative international commercial arbitration (the hague; new york; frederick, md: kluwer law international, 2003). ganapathy, puneeth, “court discretion in indian setting-aside proceedings: modification v. doing ‘complete justice’”, kluwer arbitr blog (15 september 2021), online: <http://arbitrationblog. kluwerarbitration.com/2021/09/15/court-discretion-in-indiansetting-aside-proceedings-modification-v-doing-complete-justice/>. 120 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … garnett, richard, “article 5 of the model law: protector of the arbitral process?” (2021) 38:2 journal of international arbitration 127–146. greenblatt, jl & p griffin, “towards the harmonization of international arbitration rules: comparative analysis of the rules of the icc, aaa, lcia and cietac” (2001) 17:1 arbitration international. karton, joshua, the culture of international arbitration and the evolution of contract law (oxford: oxford university press, 2013). kerameus, kd, “waiver of setting-aside procedures in international arbitration” (1993) 41:1 american journal of comparative law. klingler, joseph, et al., between the lines of the vienna convention? canons and other principles of interpretation in public international law (alphen aan den rijn: kluwer law international, 2019). k sathyapalan, harisankar & aakanksha kumar, “the 1985 model law and the 1996 act: a survey of the indian arbitration landscape from part i jurisdictions that have adopted the model law: implementation and comparisons” in uncitral model law asian arbitr laws implement comp (cambridge university press, 2018). l moses, margaret, principles and practice of international commercial arbitration, 3th ed (cambridge university press, 2017). meshel, tamar, “procedural cross-fertilization in international commercial and investment arbitration: a functional approach” (2021) 12:4 j int dispute settl. metha, aditya, et al., “this is the end: what now? the aftermath of an award being set aside”, amarchand mangaldas india corp law (5 may 2021), online: <https://corporate.cyrilamarchandblogs.com/ 2021/05/this-is-the-end-what-now-the-aftermath-of-an-awardbeing-set-aside/>. oswal, arjit & balaji sai krishnan, “public policy as a ground to set aside arbitral award in india” (2016) 32:4 arbitration international. panganti, rupal, "setting aside of domestic arbitral award in conflict with public policy of india," scc (28 july 2021), online: 121 | indonesian journal of law and society <https://www.scconline.com/blog/post/2021/07/28/domestic-arbitralaward/>. r wehowsky, andreas & johannes landbrecht, “transnational coordination of setting aside and enforcement of arbitral awards – a new treaty and approach to reconciling the choice of remedies concept, the judgment route, and the approaches to enforcing awards set aside?” (2020) 37:6 journal of international arbitration. uncitral, "status: uncitral model law on international commercial arbitration (1985), with amendments as adopted in 2006", (2010), online: <https://uncitral.un.org/en/texts/arbitration/ modellaw/commercial_arbitration/status>. weigand, frank-bernd, practitioner’s handbook on international commercial arbitration (oxford, new york: oxford university press, 2010). 122 | harmonizing international commercial arbitration: a special focus on time limit to setting aside … this page intentionally left blank microsoft word 27625.doc indonesian journal of law and society (2022) 3:1 49-80 issn 2722-4074 | https://doi.org/10.19184/ijls.v3i1.27625 published by the university of jember, indonesia available online 19 march 2022 _____________________________ * corresponding author’s e-mail: 2083159@kls.ac.in legal transplant to decolonization in the evolution of india’s corporate legislation shivansh singh* kiit school of law, india abstract: in india, most existing legislation resulted from a "legal transplant" that gradually occurred in colonial times. india is a common law country that follows the colonial pattern of law-making. most of the legislation owes the british east india company, including regulation of modern business corporations. this paper aimed to examine the history and formation of corporate legislation in india and its deviation from the legislation of the origin country, england. it pointed out the relevance of local conditions in india that led to a different approach to forming corporate law in india. the local conditions in india prevailed over the process of legal transplant. the social, economic, and political factors played a significant role in forming corporate law in india. to such an extent, india deviated from the english company laws and followed the trajectory of different jurisdictions. using normative legal research, this paper is structured chronologically and progressively to trace the evolution of indian corporate law. the central premise of the study is that india has strayed from colonial law and current legislation, and its development shows no evidence of strong dependence on english law and little evidence of following in the footsteps of india's colonial past. the economic liberalization and the sebi act 1992 simultaneously led to a new approach in corporate law, heavily under the us. the present indian corporate law and the statutes revolving around it have departed from the transplanted law. keywords: legal transplant, corporate legislation, company law. copyright © 2022 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 28/10/2021 reviewed: 04/11/2022 revised: 24/02/2022 accepted: 28/02/2022 how to cite: singh, shivansh, “legal transplant to decolonization in the evolution of india’s corporate legislation” (2022) 3:1 indonesian journal of law and society 49-80, online: <https://doi.org/ 10.19184/ijls.3i1.27625>. 50 | legal transplant to decolonization in the evolution of india’s corporate legislation i. introduction there has been a growing discussion on the role of "legal origins" and "legal families" in developing legal rules and institutions within a country, particularly in finance, between comparative law scholars.1 there has been a growing emphasis on the growth of comparative corporate law within this discussion. a major success of corporate law regimes in any legal family directly links to the success of that legal institution in protecting the interests of shareholders.2 the countries belonging to the common law family provide better protection to outside investors than civil law countries. at the same time, in common law countries, better access to equity finance is provided to the companies.3 comprehensive studies suggest that better legal protection to outside investors leads to capital markets, and the effectiveness of the financial system of a country depends on investor protection based upon the quality of law enforcement.4 however, there have been different claims about the development of corporate law. many have criticized this theory because the formation of law and legislation is influenced more closely by the country's political atmosphere.5 the legal origin does play a significant role in better financial development.6 1 john amour & priya lele, law, finance, and politics: the case of india (law and society review, 2009) at 491, 492. 2 umakanth varottil, “the evolution of corporate law in post-colonial india: from transplant to autochthony” (2015) 31 american university international law review 253–325 at 4. 3 rafael la porta, et al, “legal determinants of external finance” (1997) 52:3 the journal of finance 1131–1150 at 1131, 1137. see also misbahul ilham, bhim prakoso & ermanto fahamsyah, “compensation arrangements in expropriating goods and equipment: an indonesian experience” (2020) 1:2 indonesian journal of law and society 199–218 at 210. 4 rafael la porta et al, supra note 3. shamila dawood, “corporate social responsibility and mncs: an appraisal from investment treaty law perspective” (2021) 2:2 indonesian journal of law and society 197–234 at 208. 5 john armour & priya lele, supra note 1 at 493. 6 holger spamann spamann, “contemporary legal transplants: legal families and the diffusion of (corporate) law” (2009) 2009:6 byu law rev, online: <https:// digitalcommons.law.byu.edu/lawreview/vol2009/iss6/11>. 51 | indonesian journal of law and society while india had gone through the legal transplant, the problem that led to the decolonization of corporate law in india was the failure of a successful transplant due to the ignorance of india's local condition by the colonial rulers. in other words, indian corporate law functioned as a continuum of transplants from english law, which continued for over a century, as elaborated further. the oddity about the act 1850 was that registration was only optional as it conferred certain privileges. the different factors play a significant role in the success of a legal transplant. these factors include the demand of the law, familiarity of the population to the legal principles of the origin country, and resources for legal change.7 these factors heavily influence the legal transplant process, and the lack of these factors can lead to ineffective implementation.8 similar issues dealing with the corporate legislation of england were imitated in india, but with its legal problems. then, colonial legislation failed to adapt to india's local economic and political conditions. as a result, the failed transplant of the legal system led to the deviation of transplanted corporate laws in the post-colonial period through decolonization. the relevance of this discussion stems from india's colonial origin, which makes it a part of the common law family.9 focusing on english corporate laws and their imitation in india, the company legislations introduced in india have undergone several amendments due to the apathetic nature of the legislation towards india's local conditions. before discussing legislations and problems, the critical issue is the motive behind introducing these laws in india. european traders wanted to open trade in india, and recognition as a company, unlike today, could only be obtained through the royal charter, which by the end of the 17th century came into the form of acts of british parliament and later indian legislature or a combination of an act and a charter.10 7 daniel berkowitz, katharina pistor, & jean-francois richard, “the transplant effect” (2003) 51:1 the american journal of comparative law at 163, 168. 8 ibid. 9 m p jain, outlines of indian legal and constitutional history, 6th ed (new delhi, india: lexisnexis, 2007) at 364-367. 10 r s rungsta, “indian company law problems in 1850” (1962) 6:3 american journal of legal history 298–308; ella gepken-jager, “the english east india company and the history of company law” in gerard van solinge & levinus 52 | legal transplant to decolonization in the evolution of india’s corporate legislation therefore, the establishment of the east india company as a result of the royal charter of 1600 authorized the company to trade in india and other markets in asia.11 india's colonial past is silent on the real motive of the company to imitate these legislations. the dissemination of the history of legal transplant describes it as a move to regulate the capital market and serve the interests of colonial rulers.12 rungta provided a ground for discussion on the influence of socio-economic factors and political motives in introducing similar laws in india.13 thus, the corporate law transplant in the 19th century was well planned, but the problems with the transplant shall not be overlooked to understand india's stand of departing from the transplanted legal system in the post-colonial era. this deviation from the transplanted legal system raised a question on the classification theory of legal systems in understanding the present corporate laws. it also deals with the influence of legal origin in tracing back the development of the recent legislation which deals with corporate and commercial affairs.14 the paper has been divided into four major parts of the discussion. the first part provides a historical overview of company legislation. the second part examines the decolonization of company law in indonesia from 1947 to 1960. the third part analyzes the rise of socialism, following the impact on corporate law in india from 1960 to 1991. the fourth part discusses economic liberalization in corporate law and securities regulations in india. after all, this paper concludes that the economic liberalization and the sebi act 1992 simultaneously led to a new approach in corporate law, heavily under the us. the present indian corporate law and the statutes revolving around it have departed from the transplanted law. therefore, indian corporate law, based on the fundamentals of english and american timmerman, eds, voc 602-2002: 400 years of company law (kluwer law international, 2005) at 219. 11 ella gepken-jager, supra note 10 at 219. 12 umakanth varottil, supra note 2 at 16-17. 13 radhe shyam rungta, the rise of business corporations in india 1851–1900 (cambridge: cambridge university press, 1970) at 68. 14 report of the company law committee, by ministry of law india (new delhi, india: ministry of law india, 1952) at 16. 53 | indonesian journal of law and society law, has managed to subscribe to a separate jurisdictional approach that could define the indian corporate law regime uniquely. ii. methods this work was in adherence to the normative legal research method, relying on both primary and secondary sources. it was descriptive and followed an analytical approach, using the analysis of the facts to reach a conclusion based on logical reasoning. this research reviewed the current format and established a relationship with the subject matter. to this end, the author relied on current existing laws, treaties between countries, statutes, reports, databases, and various government and non-government documents. iii. history of company legislation to understand the evolution of company laws in india, first, it would need to understand the developments of business corporations and legal rules in the colonial period. in this part, the analysis covers the historical products of business laws as a result of transplant to better understand the postcolonial decisions with relation to the socio-economic atmosphere of the country that existed after independence. a. the emergence of the business corporation in england the early form of corporation in england was a flexible ecclesiastical entity, unlike today's modern corporations, looked upon as separate legal entities with corporate personalities. these were corporations deemed valid only with the assent of the crown through a royal charter. at a lower level, merchants in guilds were the most resembled form of a corporation. however, it was looked upon as a trade protection association instead. there was no need to define separate rights and liabilities of its members as these members of merchant guilds traded in their capacity. even if less in number, joint trade was possible through partnerships, given that the guild rules were followed. thus, regulating companies emerged as a replacement 54 | legal transplant to decolonization in the evolution of india’s corporate legislation to the guilds, essentially retaining the nature of a domestic guild. members of a regulating company had traded their stocks individually according to its rules. finally, joint-stock companies emerged where the members traded joint stocks on a joint account. it is exemplified from the royal charter of 1600 that resulted in the east india company, a joint-stock company that could open trade with the east indies.15 b. modern business corporations in india modern business corporations were not present in ancient india. when the indian merchants came across the operations performed by the european chartered companies, they discovered this form of corporation. therefore, modern business corporations in india owe them to the european chartered companies.16 before the european invasions, ancient business corporations had existed in the form of sreni. this term is similar to the guilds of medieval europe) since at least 800 bc or even before.17 these guilds had almost vanished after the european traders arrived, leading to trade expansion between europe and india when the english east india company first emerged as a joint-stock company in the 17th century in south india.18 the formation and status of a company were no less than a privilege. the east india company had rarely granted any charters to the companies, especially banking companies, to trade in india until 1850 as the interest of britain in manufacturing in india was growing.19 the charter granted reluctantly by the east india company to the oriental bank corporation had opened the doors to india.20 it led to the emergence of modern business corporations in india. 15 ella gepken-jager, supra note 10 at 219. 16 ibid at 1. 17 vikramaditya s khanna, the economic history of the corporate form in ancient india (ssrn, 2005) at 1. 18 radhe shyam rungta, supra note 13 at 1. 19 r. s. rungta, supra note 10. 20 ibid at 299. 55 | indonesian journal of law and society c. initiation of transplant in the 19th century the initiation of legal transplant could be traced back to 1850 when the companies act 1844 of england was passed. this act was specifically passed to register joint stock companies in india.21 the registration of these companies was to be taken up by the supreme courts of bombay, madras, and calcutta under this act.22 however, there was no provision for conferring limited liability on the members of an unincorporated company with transferrable shares without the consent of their partners or any other company.23 it was not unexpected from the act as these developments had not taken place in act 1844 of england, and the concept of limited liability was relatively lesser-known till now.24 however, there were other essential provisions in the act 1844 of england and the 1850 act of india that brought some significant changes. the joint stock company act 1844 had done away with the necessity of charters by providing for the automatic incorporation, replacing the necessity of charter for the incorporation.25 the repeal of the bubble act 1720 automatically terminated the necessity of charters, which mandated the grant of charters for incorporations.26 the act 1844 also introduced the procedure to form a company. the procedure was to file a deed of settlement, similar to registering a joint-stock company under the indian act 1850.27 like the 1844 act, the indian act 1850 introduced some important provisions related to forming joint stock companies in india. some essential provisions elaborated on the transferability of shares and their formation as a separate legal entity with its corporate personality. for 21 ministry of law india, supra note 14. 22 ibid. 23 ibid. 24 umakanth varottil, supra note 2 at 13. 25 pm vasudev, capital stock, its shares and their holders: a comparison of india and delaware (ssrn, 2007) at 17. 26 ibid. 27 ibid at 16-17. 56 | legal transplant to decolonization in the evolution of india’s corporate legislation example, a company was allowed to sue or sued by the shareholders.28 further, there were provisions for insolvent companies as well.29 the act 1844 did not limit shareholders' liability, leading to the lack of protection. this trend was also evident in the 1850 act and the problem of optionality in the registration of a company.30 the problem of limited liability was dealt with in the limited liability act 1855 of england, and it was confronted in the indian company act 1856. in the same year, the joint stock companies act 1856 was enacted in england to put forth some amendments in incorporating a company.31 instead of a deed of settlement, a memorandum of association (moa) was submitted before the authorities. the submission was to incorporate a company along with reasons and objects of formation. the moa defined the scope of the companies regarding the business that they would undertake. it led to the emergence of the concept of "ultra vires doctrine" when the house of lords, in the case of ashbury carriage co. v. riche32 ruled that a company cannot act beyond its powers and objects defined at the time of incorporation through the moa. these developments show that the development in india as compared to england was slow and more like a regime of mimicking the legal rules without giving due attention to the local conditions in india. although the joint stock companies act 1856 introduced limited liability in england, it did not extend this privilege to the banking and insurance companies. the exact scenario was repeated in india when limited liability was introduced but not extended to the banking and insurance companies.33 the same pattern is followed with the english act 185734 and its counterpart, the indian company act 1860. however, the limited liability was extended only to the banking companies and not to the insurance companies this 28 ministry of law india, supra note 14. 29 ibid. 30 radhe shyam rungta, supra note 13 at 41. 31 p. m. vasudev, supra note 25. 32 (1875) lr 7 hl 653. 33 radhe shyam rungta, supra note 13 at 64. 34 the joint stock companies act, 1857, no. 19, ministry of corporate affairs, 1857(india). 57 | indonesian journal of law and society time.35 it continued with the english act1862, followed by act 1866 of india. as stated in the bhabha committee report, the purpose of these acts was to consolidate and amend "the laws relating to the incorporation, regulation and winding up of trading companies and other associations."36 finally, the limited liability as a privilege was extended to the insurance companies.37 further, with the beginning of the 20th century, new developments were evident by enacting different amending acts from 1882 to 1913.38 d. developments in the 20th century in india, the development of company law in the 20th century resulted from amendments that had taken place in england after 1862. significant amendments that had taken place in the 1862 act were finally consolidated in india in the 1882 act. the english company law was heavily based upon the reports of different committees formed by the board of trade at the intervals of 20 years to review company law, as explained by lcb gower.39 these reports were comprehensively considered to form subsequent english company law consolidating acts. the consolidation act 1908 resulted from the loreburn committee (1906), whereas the reports of the wrenbury and greene committees were considered while drafting the companies act 1929. a similar fashion was followed in the formation of the companies act 1948, based on the recommendations of the cohen committee (1945).40 while english company law was reforming with a shift from individual rights to business,41 india went through a series of 35 radhe shyam rungta, supra note 13 at 70. 36 ministry of law india, supra note 14 at 17. 37 radhe shyam rungta, supra note 13 at 212. 38 ministry of law india, supra note 14 at 17. 39 lc b gower, the principles of modern company law (london: stevens & sons, 1969) at 54. 40 p. m. vasudev, supra note 25 at 18. 41 the act 1844 considered the capacity of individual company members and not the business activities it had undertaken as a company. it was later reformed after enacting the joint-stock companies act 1856, and introducing the concept of "ultra vires" with the coming of moa for incorporation of the companies. see ibid at 17. 58 | legal transplant to decolonization in the evolution of india’s corporate legislation amendments even after the consolidating act 1882.42 some amendments included the authorization of companies to modify or alter their objects after taking permission from the high court, allowing keeping the branch registers of members of certain companies in the uk and the re-issue of redeemed debentures.43 the imitation observed in the introduction of company legislations of the 19th century in india was followed in the 20th century. the consolidating act 1908, formed based on recommendations made by the lorneburn committee, was followed by the companies act 1913 in india with slight changes.44 this trend is slowly changing its stance from imitation and reenactment of english laws to adapting to the local problems prevalent in india. a new act was introduced, an amending act instead of a consolidating act. however, this act was based on the english act 1929, the problems of managing agency systems, and a need for provisions specific to banking companies, not explicitly incorporated till now.45 even the statement of objects and reasons of the indian companies (amendment) act 1936 states that the english company act 1929 could not be adopted as it had "attracted unfavorable criticism" for not considering the local problems of india. to create laws on banking, the recommendations of the central banking enquiry committee were taken into consideration.46 another case where this proposition could be supported is the case of ramanandi kuer v. kalawati kuer.47 this case makes it evident that india is a common law country. the judiciary did not hesitate because mere re-enactment of english legislation will not attract a positive enactment of a statute unless the statute's language is examined to interpret clauses properly without considering the statute's origin, which 42 ministry of law india, supra note 14 at 17. 43 ibid. 44 there were certain differences between the indian act 1913 from the english act 1908. later, the act 1913 was amended from 1914-1932 by the acts of 1914, 1915, 1920, 1926, 1930 & 1932. see ibid at 17. 45 statement of objects and reasons of indian companies (amendment) act, 1936. 46 ibid. 47 (1928) 30 bomlr 227. 59 | indonesian journal of law and society may be english law.48in another case of hind overseas private limited v ragunath prasad jhunjhunwalla and ors,49 the indian court believed that the indian company law was english. it is crucial for the courts to adjust and adapt limit or extend the principles derived from english decisions entitled as they are to great respect, suiting the conditions of our society and the country in general. after the amendment, the act 1913 was further amended almost ten times from 1937 to 1946. these amendments resulted from defects left in the act 1913 even after the amendment. the different rules were amended to align this act with other statutes, such as the government of india act, 1935.50 after the independence, india saw a shift in the policy that dealt with corporate laws. it is evident because the government promulgated an ordinance in 1951 after india became a sovereign democratic republic as the indian companies (amendment) ordinance, 1951. this ordinance aimed to reform the corporate laws by authorizing the government to interfere in the company affairs and authorized the courts to take action against any prejudicial move against any company member.51 e. impact of the failed transplant and "colonial laissez-faire" as discussed previously, the british motivation to introduce these legislations in india is not expressly stated. various studies and findings suggest that the british colonizers wanted to expand trade in india1 and systematically disrupt the vernacular business structures in india by ignoring the interests of local business forms.52 scholars like rungta and birla explain the british motives behind introducing these laws in india. rungta, while analyzing the pattern of mimicking the company legislations in india, observed that there was a common viewpoint that the laws which 48 ramanandi kuer v. kalawati kuer (1928) 30 bomlr 227, § 8. 49 air 1976 sc 565. 50 ministry of law india, supra note 14 at 18. 51 ibid at 19. 52 see, ritu birla, stages of capital law, culture, and market governance in late colonial india (duke university press, 2009). umakanth varottil, supra note 2 at 266-268. 60 | legal transplant to decolonization in the evolution of india’s corporate legislation were favorable in england must be favorable in india as well.53 she accounted that the colonizers did not only ignore the interests of local business forms but also followed the free-market ideology or the "colonial laissez-faire." it completely ignored businesses such as the hindu undivided family (huf) and other local businesses that operated in kinships.54 birla also states that to serve the british interests, the colonizers took a route of capitalism and the notion of "free-market ideology." it was evident in the legal regime, with some examples in the free circulation of credit and commodities and institutionalization of contract law,55 which led to the disruption of local businesses. even after much emphasis on british interests, an indian innovation that was not directly related to the colonial interests came into existence known as the "managing agency system." this system was not entirely isolated from the developments taken place by the colonial rulers but somewhat was facilitated by them. it emerged as a result of consideration towards the local conditions in india. f. evolution of the managing agency system the managing agency system was a unique arrangement where agents were hired to manage the colonial period's joint-stock companies.56 rungta describes the emergence of the managing agency system in india due to necessities of "history, geography, and economics."57 the system of managing agents advocated the viewpoint of vesting the business in the hands of capable agents who were motivated to run the business and manage it. although the managed companies generally would constitute their board of directors, those were these agents who had the 53 radhe shyam rungta, supra note 13 at 68. 54 ritu birla, supra note 52. umakanth varottil, supra note 2 at 267-268. 55 dipesh chakrabarty, rochona majumdar, & andrew sartori, eds, “capitalist subjects in transition” in from the colonial to the post-colonial : india and pakistan in transition (new york: oxford university press, 2007). 56 umakanth varottil, corporate law in colonial india: rise and demise of the managing agency system (centre for asian legal studies, 2015) at 1. 57 radhe shyam rungta, supra note 13 at 220. 61 | indonesian journal of law and society responsibility to handle the management of the business, such as establishing and running the business.58 as discussed earlier, the formation of vernacular business corporations in india was based on family relations. besides those business corporations, people who had the will and capability to hold and manage the business existed. these capable businesspersons came together to contribute as active investors and managers.59 however, it gave them a higher position and control over the company, leading to the diffusion of shareholders who did not have any financial assistance to check on the powers and functions of the managers. as passive investors were not capable of managing the company, nor did they have any will to manage, managers' control and ownership kept growing.60 it led to the abuse of powers by the managers to safeguard their interests showing disregard to the interests of the shareholders.61 this effect was seen in the latter half of the 19th century when the shareholders had fell victim to the large-scale abuse by the british managing agents.62 it is essential to understand how this concept emerged in india and spread to the rest of the asian colonies to understand how this happened. the concept of limited liability did not emerge after the english law mandated it. surprisingly, it existed thousands of years before transplant had begun.63 before establishing modern business corporations, hindu families handled the businesses jointly. these families were involved in the business as a separate entity from its members, who were not personally liable for the debts and losses.64 therefore, limited liability existed within these families where only the head of the family was held personally liable 58 robert c rosen, “the myth of self-regulation or the dangers of securities regulation without administration: the indian experience” (1979) 2:4 university of pennsylvania journal of international law at 263. 59 radhe shyam rungta, supra note 13 at 227. 60 umakanth varottil, supra note 57 at 1-2. 61 ibid at 1. 62 ibid at 2. 63 robert c. rosen, supra note 58. 64 ibid. 62 | legal transplant to decolonization in the evolution of india’s corporate legislation under hindu law.65 the other members of the family, who were indulged in the business, had no personal liability of their own and only shared profits.66 it aided the rise of managing agencies in india which were further aided by the trading system of sterling companies in india which looked like a managing agency system. with the emergence of the indian managing agency system, several partnerships have emerged in india. the managing agents of these private and public companies, which were earlier in the form of partnerships, controlled these companies. given their capabilities, they were able to raise capital by attracting investors. these agents were held personally liable for the loans of their managed companies,67 similar to the head of the family in hindu family businesses. studies suggest that in india, the presence of british managing agents was more than the indian agents themselves.68 it facilitated their image in the colonial business sphere as well.69 however, this could be attributed as one of the primary reasons for the abuse of power by these agents. the grant of proxies by the passive investors further deteriorated this agency problem.70 the indian managing agency system, which existed before the transplant, also had some problems, positively affecting india's economic development. first was the vesting of powers in the hands of incapable family members.71 members who were not capable enough to raise finances by attracting investors were made the managing agents, which resulted in poor business management. agents started misusing their powers by funding weaker entities through the capital of their managed company.72 another problem 65 ibid. 66 ibid. 67 t b desai, economic history of india under the british (bombay: vora, 1968) at 89. see also robert c. rosen, supra note 58. 68 maria misra, business, race, and politics in british india, c. 1850–1960 (clarendon press, 1999) at 4. omkar goswami, “sahibs, babus, and banias: changes in industrial control in eastern india, 1918-50” (1989) 48:2 the journal of asian studies 289–309 at 292. radhe shyam rungta, supra note 13 at 227. 69 maria misra, supra note 68. 70 omkar goswami, supra note 69 at 294. 71 robert c. rosen, supra note 59 at 264. 72 t. b. desai, supra note 68 at 89-90; see robert c. rosen, supra note 58. 63 | indonesian journal of law and society was the power to appoint a board of directors. the managers could appoint the board of directors, which could serve their interests, detrimental to the public shareholders.73 therefore, problems had existed before the british managing agents had taken over the indian market. these problems were dealt with through legislative efforts, however much later. the question arises here is that what could be the plausible reason for such a delay? there was no real motive to introduce legislation to solve these agency problems since the colonizers were ignorant of the local economic conditions. the english lawmakers saw no efforts to draft legislation adaptive to the local conditions to solve the agency problems. partly, it was because they were unaware of the local conditions in india and these local agency problems. also, the british managing agents did not face these problems while managing indian companies as they were in a dominant position. the managing agency system was majorly criticized by the indian shareholders and businesspersons subject to abuse. also, there was no political will in introducing legislation as the companies act 1913 did not mention these problems once.74 misra attributes this lack of political will to the pre-dominance of british agents.75 this problem only occurred in 1936 when the companies act 1913 was amended. it was the beginning of the statutory restrictions, which slowly led to the demise of this system. the 1936 amendment had restricted the managing agents and limited their powers by allowing them only to appoint one-third of the board of directors, making provisions for their removal in case of fraud, insolvency, or breach of trust. most importantly, it had limited this system to 20 years.76 in the amendment of 1956, a limit on the number of companies to be managed by each agent was imposed to be ten. the system was abolished after the amendment of 1969 mandated that 73 m arokiaswami & t m royappa, the modern economic history of india (newman book house, 1957) at 151–152. 74 robert c. rosen, supra note 59 at 264. 75 maria misra, supra note 69 at 7-8. 76 arokiaswami & t m royappa, the modern economic history of india (newman book house, 1957) at 151–152. robert c. rosen, supra note 59 at 264. 64 | legal transplant to decolonization in the evolution of india’s corporate legislation the term of all the agents would be expired. no further agents shall be appointed, which would come in effect from 1st april 1970.77 the case study of the rise and demise of the managing agency system in india only further supports the argument that the transplant that had taken place in india was to serve the interests of the colonizers. further, this also describes that when they were not facing difficulties in managing businesses in india, they were ignorant of the domestic conditions and the repercussions of the transplant. therefore, the transplant was a failure, and india had to depart from the transplanted legal system, first observed with the introduction of the 1936 amendment. after the 1936 amendment, the departure from english law was carried forward to the post-independence scenario. the development of company law, like any other law in india post-independence, the development of company law was affected by the political and economic conditions in india that existed after the independence. therefore, while discussing the development of post-independence and decolonization in detail in the next part, this cannot be done without analyzing the socialist tendencies followed by india's post-independence. simultaneously comparisons with competition and security regulations shall also be drawn to analyze the broader perspective of indian commercial laws. iv. decolonizing company law in india (19471960) in this part, this paper analyzes the simultaneous development of commercial laws in the post-independence scenario. the decolonization did not take place immediately after the independence. it was rather unconsciously affected by the political decision-making and the country's economic conditions. the departure from english laws was unsurprisingly observed in other laws. however, the trajectory followed by india in terms of commercial laws, unlike the other laws, was somewhat towards the english laws. this part also discusses india's economic policy shift from capitalism to a "mixed economy" had on corporate law-making. further, it 77 ibid at 264. 65 | indonesian journal of law and society examines the socialist tendencies and significant shift to capitalism after the economic liberalization of 1991, along with its effect on security regulations and simultaneous developments in corporate affairs. a. economic policy shift and its effect on corporate legislation after gaining independence in 1947, india was decolonized as a country when the decision-making related to the economic policies was in the indian political leaders. however, corporate law-making was not decolonized. indians were distrustful about the capitalistic order and the "free market ideology" or the "laissez-faire." the capitalistic order imposed by the colonizers was harmful to the indian businesses.78 india was suffering from poverty and illiteracy problems and low life expectancy.79 this episode made it even more crucial for the policymakers to adopt an economic policy that could solve these problems efficiently. therefore, there was a debate between eminent policymakers on whether to follow the path of state ownership or liberalization. finally, when jawaharlal nehru became the first prime minister, he decided to follow the policy of "fabian socialism," which advocated state ownership and self-regulation.80 the first five-year plan, which advocated industrialization, aimed at the success of the mixed economy policy. the motive behind emphasizing state interference and ownership was to depart from the colonial economic policies. dwijendra tripathi and jyoti jumani have emphasized it. they stated that "independent india did not abandon the free enterprise system altogether, but what these policies together sought to introduce was a system very different from the one that had operated under colonialism."81 these measures brought a sea change in 78 radhe shyam rungta, supra note 13. ritu birla, supra note 52. umakanth varottil, supra note 2. 79 nirmalya kumar, “india unleashed” (2009) 20:1 bus strategy rev 4–15. 80 see, b r thomlinson, the economy of modern india, 1860–1970 (england: cambridge university press, 1993). 81 dwijendra tripathi & jyoti jumani, the concise oxford history of indian business (new delhi & new york: oxford university press, 2007) at 23. 66 | legal transplant to decolonization in the evolution of india’s corporate legislation the business environment.82 it was the beginning of a departure from colonial policies after the independence. however, the policies cannot be stated as anti-capitalist as some private capital was still recognized, and private enterprises were not totally abolished.83 laws related to the regime of licensing of industrial units are the industries (development and regulation) act 1952, along with other laws related to the regulation of private enterprises such as the essential commodities act 1955, capital issues control act 1947, and the essential supplies (temporary powers) act 1946. they make it evident that the government was following the policy of socialism with an aversion towards capitalist tendencies given to the colonial experience. licenses were imposed on these industrial units to regulate and control them and look upon capacity expansion.84 it clearly shows that the state ownership had prevailed over the private businesses and entrepreneurs as they were subject to the "license raj" of the state. in this atmosphere, was introduced the first companies legislation after the independence. b. the companies act 1956 the introduction of the 1956 act in india marked the beginning of a new era which was surprisingly another legal transplant from english law. however, this time, it was well planned.85 the companies act 1956 is an example of a contradictory stance of the government in making legislative decisions. where one way, the government was trying to regulate private enterprises as discussed above, the other way, with the introduction of the 1956 act, borrowed another colonial legislation from england. the 1956 act in india referred to the english companies act 1948, based on the recommendations of the cohen's committee (1945).86 when a committee 82 ibid. 83 see, ibid at 19. 84 see, ibid at 22. 85 see, umakanth varottil, supra note 2 at 24. 86 report of the committee on company law amendment (cohen committee report 1945), by cohen committee (his majesty’s stationery office, 1945). p. m. vasudev, supra note 25 at 18. 67 | indonesian journal of law and society presided by ch bhabha as the chairperson was formed in india to review company legislation and give recommendations, it highly relied upon the recommendations of cohen's committee. varottil observes that in obtaining a better sense of the extent of reliance on english law, a review of the bhabha committee report indicates approximately 148 references to the english companies act 1948, adopting with approval 64 of its provisions and modifying or rejecting only 21 provisions.87 it asserts that the basis on which bhabha committee made its recommendations was the colonial legislation. therefore, india did not depart from english law in company legislation. other spheres followed the trajectory of "state ownership and regulation." while understanding the case of contradictory decision-making, the transplant in its nature was not the reason for the failure. instead, it was the ignorance of the colonizers towards the local conditions while transplanting the legislation in india. as discussed, the british companies were somehow responsible for disrupting the indian businesses. therefore, the transplant that had taken place in the colonial period was different from the wellplanned one, which the government undertook on the recommendations of the bhabha committee. though it was a conscious move, there was no intent to depart from the english legislation. instead, the evolution and departure after independence resulted from the country's political and economic scenario. varottil states no intention to frame indigenous legislation apt to india's changed circumstances given the enormous shift in its economic policies.88 this raises a question on the motive of the parliament in promoting state ownership. many studies suspect that this could be because of the risk of "immediate break away" from the colonial legislation, specifically because enactments of some other laws have shown this phenomenon.89 87 umakanth varottil, supra note 2 at 25. 88 umakanth varottil, supra note 2 at 25. 89 ibid. rohit de, “‘commodities must be controlled’: economic crimes and market discipline in india (1939–1955)” (2014) 10:3 international journal of law in context 277–294. anil kalhan et al., "colonial continuities: human rights, terrorism, and security laws in india” (2006) 20:1 columbia journal of asian law. 68 | legal transplant to decolonization in the evolution of india’s corporate legislation c. what was the legislative approach towards the private enterprises? the parliament followed a contradictory approach. tripathi and jumani described this situation as having no intent to unduly curtail the freedom of private enterprises.90 there was no "immediate threat" to them as the private enterprises were left undisturbed where they were suspected of expanding.91 it can be deduced that the socialist approach of parliament was not observed in the legislative actions taken towards corporate law. also, the state did not intend to control businesses, not through corporate law. therefore, even after having a good chance to alter the company law after independence, parliament decided to follow the same legislation even after turning the path to enact other laws. by analyzing the bhabha committee report and its take on the managing agency system, managing the agency system became controversial due to managing agents' exploitation. even after much of those problems, the bhabha committee concluded, "having regard to all the circumstances, we consider that under the present economic structure of the country it would be an advantage to continue to rely on the managing agency system."92 on the other hand, the planning commission stated that the managing agency system under which industries are controlled and operated by independent firms had disclosed several features that are harmful to the industry's growth in the future.93 the bhabha committee report further stated the shorn of the abuses and malpractices that have disfigured its working in the recent past. the system may yet prove to be a potent instrument for tapping the need for the springs of private enterprise.94 it clearly shows the reluctance to depart from the colonial state of play. however, the committee recommended suggestions related to the appointment, remuneration, and powers of managing agents and borrowing loans. it was to minimize the abuse. 90 dwijendra tripathi & jyoti jumani, supra note 82 at 25. 91 ibid at 26. 92 ministry of law india, supra note 14 at 84. 93 ibid. 94 ibid at 85. 69 | indonesian journal of law and society a parliamentary committee looked into the matter and suggested the indian companies act reforms. as a result, these changes were incorporated in the companies act 1956, which imposed strict limitations on the managing agents. however, this system was abolished only in 1970, which shows that these problems were not enough for the parliament to abolish the system altogether. instead, there was a will to retain the system by reforming it to reduce the problems. this case study of managing the agency system and its retention establishes that independence did not attract self-made legislation. india followed the transplanted laws, and parliament facilitated this process. further, the parliament did not want to reform the transplanted legislation into self-made laws. the parliament had a different legislative approach while dealing with corporate legislation compared to the broader aspect of promoting state ownership. v. rise of socialism and impact on corporate law in india (1960-1991) it has already been discussed in the previous part that after independence in 1947, india had not departed from the english transplanted laws and followed the same laws, but after planning it properly. politics played some part in the development of corporate law, but little.95 the broader perspective of the following socialism was slowly incorporated into corporate legislation. it was evident in the political actions, based on the recommendations of various committees formed in the 60s, 70s, and 80s from time to time.96 these recommendations were to reform and contain corporate managements in line with the socialist tendencies of the state.97 one such reform was to treat large private companies as "deemed public companies," a concept introduced in india through the amendment of 1960.98 public companies under english law were subject to a more controlled regulatory framework. one such example of this could be that 95 p. m. vasudev, supra note 25 at 20. 96 ibid at 21. 97 ibid at 20. 98 ibid at 21. 70 | legal transplant to decolonization in the evolution of india’s corporate legislation the remuneration paid to the managing director in public companies was regulated by the companies act 1956 under section 310. it had mandated that any increase in such remuneration be subjected to prior approval by the central government. similarly, section 311 stated that prior government approval should be necessary while re-appointing the managing director. another example could be section 182 of the act, which states that in a public company, a member shall not be restricted from exercising his/her voting right or the right to transfer shares in a public company. on the other hand, the english law distinguished private and public companies clearly, and the regulatory framework for these types differed. under the english companies act 1948, private companies were subject to a liberal regulatory framework as these private companies were somewhat closely related to the structure of a partnership firm.99 therefore, they were treated as a closed structure with no strict limitations and regulatory oversight. on the other hand, under section 43a of the 1956 act, private companies were subject to the provisions of public companies under certain circumstances. further, in 1960, new types of companies known as "deemed public companies" emerged. private companies with large capital and extensive turnover beyond limits, along with control over public companies, were now treated as "deemed public companies."100 the committee that had recommended this gave simple reasoning that a private company with control over a public company had investments drawn from other private and public companies and the overall public. it should not be treated as a private company, and the same company should be subject to the same restrictions imposed on public companies as they had drawn the public's money.101 the growing socialism in corporate law could be analyzed further with other examples of cognizance towards the public interest, the demise of the managing agency system, the debates, and discussions. they were held in 99 ibid. 100 ibid. umakanth varottil, supra note 2 at 28. 101 see p. m. vasudev, supra note 25 at 21. 71 | indonesian journal of law and society the parliament with the coming of the 1960 amendment bill and enactment of different statutes which promoted socialism. we shall discuss these to understand the growing socialist tendencies and their effect on corporate law. the rise of socialism can be analyzed by introducing the concept of public interest incorporated into india's company law. this concept was not mentioned anywhere in act 1913. the provisions related to "public interest" or "national interest" were only introduced in the 1956 act and amended several times. for example, section 396 provides that the government shall amalgamate two or more companies into a single company in the national interest. the term "public interest" was later changed to "national interest" through the amendment of 1960. section 250 empowers the corporate law board to impose restrictions on transfers of shares where such transfers may be prejudicial to the public interest. for example, the exercise of the voting rights on such transfers shall be restricted, or the transfers shall come into effect only after the approval of the board. sectionw 397 and 398 states that a member of a company or a shareholder company is entitled to seek remedy by applying to the board if the company affairs are mismanaged in a prejudicial way to the public interest, respectively. section 394 states that an arrangement or a compromise shall not be permitted if it goes against the notion of public interest. these provisions align with the broader socialism evident in the state's political developments. earlier, where corporate law was following the english model even after the independence, there was a contradictory stance of the parliament. however, slowly this stance was changing, which was evident through the parliamentary discussions, the demise of the managing agency, and enactments of socialist legislation. the managing agency system, which was earlier being reluctantly followed, was now on the verge of its abolition. as discussed in the previous parts, the managing agency system slowly became autocratic as the managing agents started abusing their powers. as discussed earlier, it led to the abolition of this system with the amending act of 1969, which came into 72 | legal transplant to decolonization in the evolution of india’s corporate legislation effect in 1970. it could somewhere be attributed to the rising socialism in india. a joint committee was established before the amendment of 1960 to discuss the provisions extensively. the report of this committee and the parliamentary debates on government control makes it evident that socialism was prevailing in corporate legislation. regarding the investment of the funds, it is suggested that the funds of the private company also have to be invested in a particular manner. this paper suggests that all distinctions between public and private companies should be abolished entirely. there is no difference between a private company and a public company so far as the country is concerned. there is no difference in the management of private and public companies so far as business, production, and employment are concerned, and private companies are also mismanaged like public companies. there should be equal restrictions on the private and public companies regarding the appointment of managing directors or agents.102 he also stated that the government should exercise greater control over the companies. the auditors' report shall be presented before the shareholders and the government, thus emphasizing the nationalization of the audit services.103 however, analyzing the arguments stated above, it can be concluded that there was a growing emphasis on government control and state ownership while enacting different statutes. coming onto the enactment of new laws which were going in line with the policy of socialism, surprisingly, the process of infusing socialism in india after independence first started through legislation. one of the first statutes enacted after independence as a socialist statute was the capital issues control act, 1947 (cica). this act mandated government control over the issuance of equity by private enterprises.104 the following table showcases the enactment of different laws not only promote socialism but was also detrimental to protecting creditors: 102 government of india, report of the joint committee 464 (1960). 103 ibid at 464-465. 104 john armour & priya lele, supra note 1 at 500. 73 | indonesian journal of law and society capital issues control act 1947 ('cica') requirement of government permission and price regulation for new equity issues by private companies. companies act 1956 ('ca 1956') powers on the central government (the department of companies affairs via the company law board or the registrar of companies) and the judicial system (the high court) monitor and regulate companies. securities contract (regulation) act 1956 ('scra') government control of securities trading, including operation of stock exchanges. exchanges can frame their listing regulations provided they meet the minimum criteria set out in the rules. monopolies and restrictive trade practices act 1969 ('mrtp') anti-trust/competition rules to prohibit monopolistic and restrictive trade practices. said to act as a barrier to indian (private) companies realizing economies of scale. foreign exchange regulation act 1973 ('fera') regulated foreign exchange transactions, with severe criminal penalties for breach. sick industrial companies act 1985 ('sica') state agency (bifr) takes control of industrial firms with negative net assets; stay of creditors' claims. table 1. principal components of the regulatory framework for indian corporations before liberalization105 table number 1 clearly describes that the wave of socialism in corporate law was aided through the legislative efforts of the parliament. the mrtp act 1969 and the fera 1973 are the key legislative developments, a discussion on which could support the proposition that legislation was a way to infuse socialism in company law. the mrtp act 1969 is known to be the predecessor of the competition act 2002. this act had restricted the private enterprises to be regulated in a manner that could deteriorate 105 ibid. 74 | legal transplant to decolonization in the evolution of india’s corporate legislation the competition. in other words, it prevented the excess control of power in a few private players. further, the fera 1973 restricted the foreign shareholders from holding more than 40 percent shares in indian companies.106 on the other hand, the sica 1985 had set up a quasi-judicial state-owned agency named the board for industrial financial reconstruction. as the name suggests, this agency was set up to reconstruct the industrial firms. however, this agency had failed to fulfill the purpose of its formation. as per the bifr records, 5327 firms entered into the reconstruction. however, only 504 firms were appropriately reconstructed. as a result, sica was repealed. further, fera was replaced with the foreign exchange management act 1999 (fema). it was done to lift governmental control after india left the path of socialism following the economic liberalization in 1991. all this while, the only statute that was not repealed was the premiere legislation of 1956. instead, it was replaced with the companies act 2013. the act 1956 went through several amendments. however, these amendments were majorly in line with the changing economic trends in india. the lifting of governmental control from the private enterprises was extensively undertaken post-liberalization. however, some significant amendments brought in the act 1956 before the liberalization process could be observed as the initiation of removing the governmental barriers.107 the socialist legislative developments came when the licensing system and the governmental barriers were prevalent. further, the industrial manufacturing sector was majorly focused.108the governmental barriers made it difficult for the businesses to survive, which had resulted in the concentration of the power in the hands of few family businesses.109 these industrial groups' emergence and large holding shares in publicly listed companies through banking channels devastatingly affected minority 106 umakanth varottil, supra note 2 at 29. 107 john armour & priya lele, supra note 1 at 501. 108 umakanth varottil, “a cautionary tale of the transplant effect on indian corporate governance” (2009) 21:1 natl law sch india rev, online: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1331581>. 109 ibid. 75 | indonesian journal of law and society shareholders, disrupting corporate governance norms.110 also, the appointment of the directors was more or less in the hands of these groups. therefore, infusing socialism in corporate law negatively affected corporate structures. following the path of socialism did not prove to be fruitful for india, and this also attracted much criticism by the 1980s.111 further, the indian economy was facing policy paralysis with the poor performance of the public sector, rise in imports and reduction in exports, deficient foreign exchange reserves, debts from international financial institutions, and inflation. all these problems eventually led to the adoption of a liberal economy. it affected corporate law as well. vi. economic liberalisation in corporate law and securities regulations india after 1991 took the path of economic liberalization, which was mainly an act of opening the economy to foreign investment and lifting the governmental barriers. it also facilitated foreign direct investment and increased foreign shareholders in india. the deregulation and simultaneous privatization also lifted these governmental barriers to some extent. as a result, stock market appreciation was observed akin to the initial public offerings (ipo) and investors' diversification. this whole process impacted india's security regulations, which had resulted in the formation of the security and exchange board of india (sebi) in 1992. in the initial years after the liberalization, several amendments promoted capital investment from foreign investors in india. an example of this could be that a greater emphasis was now put upon the employees of the company when they were now provided greater control through employee sweat equity and stock option plan.112further, differential rights of receiving shares of stock (dividend) and voting while issuing shares.113 110 ibid. 111 umakanth varottil, supra note 2 at 31. 112 companies (amendment) act, 1999. 113 companies (amendment) act, 2000. 76 | legal transplant to decolonization in the evolution of india’s corporate legislation other reforms were also introduced, such as removing pre-merger notification and non-applicability of anti-trust laws on hostile mergers and acquisitions. further, the pre-merger notification was enacted in 2011 even when re-introduced in 2002 through the competition act. other reforms such as deletion of the concept of "deemed public companies"114and relaxation of capital maintenance115 were observed to be in line with the us law than the english law.116 the socialist path that india was following after the independence also reflected upon the public offerings of securities. the legislative efforts were undertaken after the liberalization was also evident in developing the indian securities market.117 the companies which were willing to promote public offerings of securities needed the approval of the controller of capital issues118 as a part of the socialist regime. later, the central government's control was replaced with an independent regulator named sebi. sebi's coming up led to the abolition of cci, which eventually facilitated the companies in raising capital through offering their shares to the public. the development of sebi started in 1988; however, its role was more or less negligible. this scenario changed entirely by introducing a plethora of security laws in 1992. sebi's development is a critical case study to support the proposition that india has followed different jurisdictions regarding security regulations and corporate governance measures. the securities and exchange board of india refers to the securities and exchange commission of the usa. the latter, known as sec, was established under the securities exchange act 1934. also, laws in india governing the prohibition on insider trading are somewhat akin to the laws in the us.119 it has also been dealt with by the judiciary when it had opined that sebi has extensively referred to the us law while interpreting the insider trading regulations in the case of the 114 ibid. 115 supra note 121. 116 p. m. vasudev, supra note 25 at 21. 117 john armour & priya lele, supra note 1 at 501. 118 umakanth varottil, supra note 2 at 33. 119 rakesh agrawal v. securities and exchange board of india, (2004) 1 complj 193 sat. 77 | indonesian journal of law and society appellant and sebi vs. hindustan lever ltd.120 therefore, sebi's case makes it evident that finally, with the departure from english law, there was a simultaneous process of following the path of different jurisdictions undertaken by india. it could be analyzed as an unconscious move to adapt laws that suit india's best local conditions. the analysis of transforming from socialism to capitalism post-liberalization in india explains that in this period. india borrowed the idea of a securities regulatory framework from the us. the similar aspect was observed in the amendments made in different statutes facilitating a gradual shift from the colonial past. further, the 1956 act was replaced by a new statute with a history of its own where the focus was now on the social responsibility, protection of consumers, and strengthening the corporate governance, whether it was to safeguard the minority shareholders or to solve the problem of concentration of power in few hands.121 vii. conclusion the economic liberalization and the enactment of the sebi act 1992 simultaneously led to a new approach in corporate law where the us model was heavily relied upon. all these key developments have proved that the present indian corporate law and the statutes revolving around it have departed from the transplanted law. this process was more or less unconsciously undertaken by the lawmakers. this work gives a two-plane macro comparative examination of the evolution of indian corporate law. first, it examines the law as it evolved during the colonial period and how decolonization functioned as a break from the past, resulting in postcolonial developments taking on a very different tone. second, it examines the post-colonial evolution of corporate law in india and england to identify how india differed from its fellow "common law" family members. therefore, indian corporate law, based on the fundamentals of english and american law, has managed to subscribe to a separate jurisdictional approach that could define the indian corporate law regime uniquely. 120 ibid. 121 for a detailed analysis of these problems umakanth varottil, supra note 2 at 56-66. 78 | legal transplant to decolonization in the evolution of india’s corporate legislation acknowledgments none. competing interests the author declared that he have no conflict of interests. bibiliography anil kalhan, et al, “colonial continuities: human rights, terrorism, and security laws in india” (2006) 20:1 columbia j asian law. arokiaswami, m & t m royappa, the modern economic history of india (newman book house, 1957). b r thomlinson, the economy of modern india, 1860–1970 (england: cambridge university press, 1993). daniel berkowitz, katharina pistor, & jean-francois richard, “the transplant effect” (2003) 51:1 am j comp law. dawood, shamila, “corporate social responsibility and mncs: an appraisal from investment treaty law perspective” (2021) 2:2 indonesian journal of law and society 197–234. dipesh chakrabarty, rochona majumdar, & andrew sartori, eds, “capitalist subjects in transition” in colon postcolonial india pak transit (new york: oxford university press, 2007). dwijendra tripathi & jyoti jumani, the concise oxord history of indian business (new delhi & new york: oxford university press, 2007). ella gepken-jager, “the english east india company and the history of company law” in gerard van solinge & levinus timmerman, eds, voc 602-2002 400 years co law (kluwer law international, 2005). holger spamann spamann, “contemporary legal transplants: legal families and the diffusion of (corporate) law” (2009) 2009:6 byu law rev, online: <https://digitalcommons.law.byu.edu/lawreview/ vol2009/iss6/11>. 79 | indonesian journal of law and society ilham, misbahul, bhim prakoso & ermanto fahamsyah, “compensation arrangements in expropriating goods and equipment: an indonesian experience” (2020) 1:2 indonesian journal of law and society 199–218. l c b gower, the principles of modern company law (london: stevens & sons, 1969). maria misra, business, race, and politics in british india, c. 1850–1960 (clarendon press, 1999). m p jain, outlines of indian legal and constitutional history, 6th ed (new delhi, india: lexisnexis, 2007). nirmalya kumar, “india unleashed” (2009) 20:1 bus strategy rev 4–15. omkar goswami, “sahibs, babus, and banias: changes in industrial control in eastern india, 1918-50” (1989) 48:2 j asian stud 289– 309. r s rungta, “indian company law problems in 1850” (1962) 6:3 am j leg hist 298–308. radhe shyam rungta, the rise of business corporations in india 1851–1900 (cambridge: cambridge university press, 1970). rafael la porta et al, “legal determinants of external finance” (1997) 52:3 j finance 1131–1150. ritu birla, stages of capital law, culture, and market governance in late colonial india (duke university press, 2009). robert c rosen, “the myth of self-regulation or the dangers of securities regulation without administration: the indian experience” (1979) 2:4 univ pa j int law. rohit de, “‘commodities must be controlled’: economic crimes and market discipline in india (1939–1955)” (2014) 10:3 int j law context 277– 294. t b desai, economic history of india under the british (bombay: vora, 1968). 80 | legal transplant to decolonization in the evolution of india’s corporate legislation umakanth varottil, “a cautionary tale of the transplant effect on indian corporate governance” (2009) 21:1 natl law sch india rev, online: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1331581>. ———, “the evolution of corporate law in post-colonial india: from transplant to autochthony” (2015) 31 am univ int law rev 253– 325. cohen committee, report of the committee on company law amendment (cohen committee report 1945), by cohen committee (his majesty’s stationery office, 1945). john armour & priya lele, law, finance, and politics: the case of india (law and society review, 2009). ministry of law india, report of the company law committee, by ministry of law india (new delhi, india: ministry of law india, 1952). p m vasudev, capital stock, its shares and their holders: a comparison of india and delaware (ssrn, 2007). umakanth varottil, corporate law in colonial india: rise and demise of the managing agency system (centre for asian legal studies, 2015). vikramaditya s khanna, the economic history of the corporate form in ancient india (ssrn, 2005). indonesian journal of law and society (2023) 4:1 1-29 issn 2722-4074 | https://doi.org/10.19184/ijls.v4i1.34844 published by the university of jember, indonesia available online 31 march 2023 *corresponding author’s e-mail: timatimdegu@yahoo.com the legal protection for child domestic workers in ethiopia: the case of hadiya and kambata-xambaro zones temesgen abebe degu* wachemo university, ethiopia abstract: as the saying goes, the child is the father of the man. we must properly bring up and protect our children today not least because in the future they will shoulder huge responsibility in taking charge of this country after replacing us. in many countries, especially developing ones like ethiopia, children engage in different types of works for various reasons. domestic work is one of such sector. child (domestic) work is not prohibited if it is done by those above the minimum working age (14 years) under a condition that is not exploitative. the problem in ethiopia, though, is that (child) domestic work is altogether excluded from legal protection (under the labour proclamation). without formal regulation, child domestics are prone to exploitation by their employers. this kind of exploitation is a human rights violation in addition to being a serious development concern and gender equality challenge. this research aims at examining the adequacy of legal protection for child domestic workers under the ethiopian legal system. to this end, the research employs a cross-sectional qualitative research design. within this design, the research adopts a phenomenological methodology. the research concludes that there is inadequate legal protection for child domestic workers in ethiopia beginning from formation of contract to terms of employment and working conditions. keywords: child domestic workers, child labour, legal protection. copyright © 2023 by author(s) this work is licensed under a creative commons attribution-sharealike 4.0 international license. all writings published in this journal are personal views of the authors and do not represent the views of this journal and the author's affiliated institutions. submitted: 31/01/2023 reviewed: 16/02/2023 revised: 07/03/2023 accepted: 15/03/2023 how to cite: degu, temesgen abebe, “the legal protection for child domestic workers in ethiopia: the case of hadiya and kambata-xambaro zones” (2023) 4:1 indonesian journal of law and society 1-28, online: <https://doi.org/10.19184/ijls.v4i1.34844>. 2 | the legal protection for child domestic workers in ethiopia i. introduction in spite of the prevalence and magnitude of child domestic work, there is only little research done on it in ethiopia. the existing researches either do not directly address child domestic labour or lack adequate geographical coverage. likewise, there is very little research, if any at all, made on the legal aspect of child domestic work. most of the researches are made by international institutions instead of local/national institutions and personnel. though such international institutions might be well equipped, they are not proximate to and better appreciate in detail local/national issues with sense of ownership as local/national institutions/personnel do. the main goal of this research is to explore the legal protection given for child domestic workers in ethiopia in general and southern nations, nationalities and peoples region (two zones) in particular. to this end, the research adopts a cross-sectional qualitative design while employing a phenomenological approach to inquiring the issue at hand. the research will be carried on child domestic workers living in two zones in southern nations, nationalities and peoples region, namely hadiya and kambata-xambaro zones. to be clear, the targets of this research are children aged between 14-18 years and employed in third party household at the said two zones. so this marks the scope of the research both topic-wise and geographically. at the end of the day, this research is expected to fill the knowledge gap that exists with regard to (legal protection for) child domestic work. particularly, it will pinpoint the legal gaps and challenges in protecting child domestic workers, and explore the living and working conditions of child domestic workers. in addition, the research will identify the causes and consequences of exploitations in 3 | indonesian journal of law and society child domestic works, and indicate alternative (and where possible the best) options of designing legal protection for child domestic workers. ii. research method and methodology this research adopts a cross-sectional qualitative research design. the research will be carried out at a given point in time (one year) in a given place (cross-sectional). since there is little, if any, research and thus understanding on child domestic work and thus the main task of this research is to investigate hidden and invisible phenomenon (the situation of domestic workers in the household) it is a qualitative research design1 that fits beset this study. within this design, the research adopts a phenomenological methodology. it is known that the research design that a researcher chooses, most often than not, determines the specific research tools and sampling techniques that s/he may use. the data collection instruments that are appropriate for qualitative research, and thus for the present study, is semi-structured questionnaire, and textual data (reports, surveys, documents etc). using these tools, the research gathers information both from primary sources (study participants) and secondary sources (official information and data). on the other hand, the subjects of this research are child domestic workers, children aged between 14-18 years and employed in a third party household at hadiya and kambata-xambaro zones. 1 a qualitative approach is needed when (1) little is known or present understanding is inadequate, (2) we want to make sense of complex situations or social processes, (3) learn from participants about their experiences (beliefs, motivations, opinions, practice), (4) construct a theory from data, and (5) understand phenomena deeply and in detail. 4 | the legal protection for child domestic workers in ethiopia a qualitative research typically uses a purposive sampling technique.2 when it comes to sample size, the goal of qualitative research should be to have a large enough sample size to uncover a variety of opinions while at the same time limiting the sample size at the point of saturation.3 saturation is a point at which adding more participants no more results in additional information. more particularly, the sample size for phenomenological research, according to creswell, should be something between 5-25% of the research population.4 a sample size of as low as 5-10% requires a rigorous recruitment process to be put in place though. therefore a sample size of 15 is adopted for the present research, it is not possible to accurately determine the study population as there is no study or official data that indicates the number of child domestics at the research sites. it is, however, to make an estimation of the total study population based on surveys in other parts of ethiopia. according to a rough estimate by ilo, the number of child domestic workers in addis ababa town is something between 6500 – 7500.5 if we assume that the total population of young domestic workers is a quarter of that of addis ababa, then it will be 1625. if we take a sample size of 15% from the total study subjects of 1625, the sample size will be 243. this research will be conducted at hadiya and kambata-xambaro zones. the researcher have chosen both zones because little, if any, 2 this means selection for in-depth study of typical, atypical, or, in some way, exemplary “information-rich cases”. (see michael patton, (1990). qualitative evaluation and research methods, 2nd ed., newbury park.). 3 sample size, in qualitative research design, depends on complexity of inquiry and hence cannot be clearly determined in advance! 4 john creswell, (1998). qualitative inquiry and research design: choosing among five traditions, ca: sage publications, thousand oaks. 5 international labour organization (ilo), (2012). global estimate of forced labour 2012: results and methodology. ilo, geneva. 5 | indonesian journal of law and society research is done on child domestic work in these zones despite the prevalence and magnitude of the phenomenon. in addition, the wider is the area of one’s research, the more representative it could be. last, but not least, both hadiya and kambata-xambaro zones are the catchment areas of wachamo university. the scope of this research, topic wise, is confined to the legal protection given for child domestic workers, i.e children aged between 14 to 18 years old. in terms of its geographical coverage, this research is confined to two locations. these are hadiya and kambataxambaro zones. put in short, the research deals with legal protection for child domestic workers aged between 14-18 years employed in third party household at hadiya and kambata-xambaro zones. iii. conceptual and theoretical framework a. the concept and nature of child domestic work in order to define child domestic work, we must first define who is a child and what a domestic work constitutes. a child, according to the convention on the rights of the child (crc), refers to any person below the age of eighteen years old unless national laws define it otherwise.6 since ethiopia does not have a domestic legislation that directly defines a child, a child will, therefore, refers to a person less than eighteen years just as it is put under the crc. on the other hand, domestic work, according to the 2011 ilo convention, stands for a work carried out in or for a household(s).7 examples of domestic work include cooking, washing, cleaning, ironing, gardening, rearing children, taking care of elderly, guarding home, taking care of family 6 un general assembly (1989), convention on the rights of child, un treaty series vol. 1757, art. 1. 7 international labour organization (ilo), (2011). convention concerning decent work for domestic workers (no. 189), ilo, art. 1(a). 6 | the legal protection for child domestic workers in ethiopia pet, etc.8 a domestic worker, on the other hand, is any person who is engaged in a domestic work within an employment relationship.9 this means that the person does not work for his/her own home or family, but in or for a third party household.10 when we sum all these up, a child domestic worker is a person (child) below eighteen years who is employed by a third party household with the view to performing a domestic work in or for that household. the key element of a domestic work in general and a child domestic work in particular is the existence of employment relationship.11 this means that there must be a legal relationship between the employee (child domestic) and another person called the employer to whom the former provides labour or services under certain conditions in exchange for remuneration.12 in short, child domestic workers are employed by, and provide services for, a third party such as restaurants, coffee shops, groceries, farming and private household.13 it is this very element that distinguishes two children doing an identical task but in a different households. children who perform a household chore in their own home must be differentiated from those children performing the same task but for a third-party household. it is, basically, up to national governments to determine, in their national legislations, when and under what circumstances an employment relationship is created. states may also, at their option, adopt the specific employment relationship indicators recommended 8 international labour organization (ilo), (2017). tackling child labour in domestic work: a handbook for action for domestic workers and their organizations, international labour office, jakarta, p. 13. 9 international labour organization (ilo), (2011). supra note 7, art. 1(b). 10 international labour organization (ilo), (2017). supra note 8. 11 international labour organization (ilo), (2011). supra note 7, art. 1(b). 12 international labour organization (ilo), (2017). supra note 8, p. 14. 13 pearl boateng and helen west, (2017). child domestic work – knowledge, evidence and learning for development, k4d helpdesk report, institute for development studies, uk, p. 1. 7 | indonesian journal of law and society by the ilo in 2006.14 in practice, however, it is not easy to establish the existence of an employment relationship and often it may be overlooked (goes unidentified).15 this is so because there are many factors surrounding domestic work that may conceal, blur or disguise the existence of an employment relationship, and thus, the rights and obligations of an employee and employer. for instance, the sector often uses informal arrangements such as making oral agreements, and not declaring such agreements to public authorities. the other reason could be that child domestics may work in a familial relationship. that is to say since some child domestics work in relatives house, they are seen as a family member instead of an employee. the fundamental problem in relation with domestic child work is that it is socially and culturally accepted in many societies.16 since sociocultural ideologies obscure the existence of an employer and employee relationship, domestic worker are among the least protected global work force. most national labour legislations provide lower protection to domestic workers relative to other groups of workers. in worst case scenario domestic workers are entirely excluded from the scope of protection of labour laws. ‘‘these socio-cultural factors, and the consequential legislative deficits, are amplified in the case of child labour and specifically child domestic workers, with further ambiguity created as many child domestic workers often work for relatives (sometimes distant) or carers (as 14 international labour organization (ilo), (2006). recommendation concerning the employment relationship, r 198. 15 international labour organization (ilo), (2017). supra note 8, p. 14. 16 pearl boateng and helen west, (2017). supra note 13. 8 | the legal protection for child domestic workers in ethiopia many are orphans), and the relationship is often regarded or described as familial rather than of that of employment’’.17 at the same time, where child workers have reached the minimum age for work and are legally permitted to work, special attention should be paid to ensure that their working conditions and environment are age-suitable, take account of their specific needs, and prevent their situation from becoming hazardous.18 b. the causes and impacts of child domestic work 1. the causes of child domestic work: push and pull factors it is a complex interplay of push and pull factors that draw many children into the domestic work sector.19 some of the causal factors that drive children into the domestic work sector include, but not limited to, poverty and lack of access to education. on the other hand, increasing (wealth) inequality and wrong perception that the domestic work sector is beneficiary are notable examples that sit on the pull factors side. generally, children enter this sector lured by deception and false promises of better life (ex. good job, better pay, and schooling) contrary to the reality, i.e the very exploitative nature of the sector.20 many steps have so far been taken both at international and national levels to tackle child domestic labour (by creating decent working 17 international labour organization (ilo), (2013). child labour and domestic work, available at: https://www.ilo.org/ipec/areas/childdomesticlabour/lang--en/index.htm (accessed on 19/01/2022). 18 international labour organization (ilo), (2013). ending child labour in domestic work and protecting child workers from abusive conditions, international labour office, geneva. 19 international labour organization (ilo), (2004). helping hands of shackled lives: understanding child domestic labour and response to it, international program program on the elimination of child labour (ipec), international labour office, geneva. 20 the population council (2018). migration and child domestic work: evidence from ethiopia, available at: https://knowledgecommons.popcouncil.org/departments_sbsr-pgy/461/ (accessed on 14/01/2022). https://www.ilo.org/ipec/areas/childdomesticlabour/lang--en/index.htm https://knowledgecommons.popcouncil.org/departments_sbsr-pgy/461/ 9 | indonesian journal of law and society and living conditions), however (un)successful they might be. the major step, at international level, is the adoption of the ilo domestic workers convention in 2011 and its accompanying recommendation no. 201. ‘‘these new standards contain specific provisions requiring ratifying states to protect children from child labour in domestic work, while ensuring that child workers who can legally work are provided with decent work conditions and do so without compromising their education’’.21 apart from this the ilo minimum age convention along with the convention on the worst forms of child labour put in place the legal framework for ending child labour in domestic work. the minimum age according to the ilo convention is left for the determination of national laws as is appropriate, which in ethiopian case happens to be 14 years.22 so too, there are many steps taken at national level to protect child domestic workers against exploitation no matter how unsuccessful it might be. this includes steps beginning from constitutional recognition of children fundamental rights down to specific legislations that directly or indirectly concern the matter. 2. the impacts of child domestic work the impact of domestic work on the lives of children can be both positive and negative.23 regarding the positive effects, child domestic work serves as a source of income and livelihood both for the child domestic workers themselves and their families. in fact, in many societies young/child domestic work is perceived as an appropriate 21 international labour organization (ilo), (2013). supra note 17. 22 the federal democratic republic of ethiopia (fdre), (2003). labour proclamation of the federal democratic republic of ethiopia, proclamation no. 377, federal negarit gazette year 10 no. 2 23 gina crivello & nardos chuta, (2012). rethinking orphanhood and vulnerability in ethiopia, child protection in development, 22(4). 10 | the legal protection for child domestic workers in ethiopia means of child upbringing and preparation for adulthood.24 in many cultures, children/children engagement in a domestic work is considered quiet normal.25 but child domestic work results into loss of several rights and education opportunities that is detrimental to the personal, social and psychological development of children. child (young) domestic work has, in fact, become one form of child labour across the globe.26 as a matter of fact, it is now a day considered as modern-day slavery, mainly owing to the lack of (adequate) regulation. child domestic work (labour) is a national concern as much as it is a globally pressing issue. the domestic work sector is one of the informal/under/unregulated, degrading and lowest paying work sector compared to other sectors. domestic work affects children by keeping them out of school, confining them to the home, making them socially isolated, and overburdened with domestic works.27 according to one study made in three cities of ethiopia, nearly half (49%) of domestic workers have never been to school.28 they are also, according to the same study, highly vulnerable to sexual abuse. 24 scott lyon and cristina valdivia, (2010). towards effective measurement of child domestic workers: building estimates using standard household survey instruments, understanding children’s work programme working paper series, unicef. 25 yordanos tesfaye, (2018). child domestic work in ethiopia: the experiences of rural girls who migrate to take up jobs as domestic servants in addis ababa, norwegian university of science and technology. 26 united nations international children emergency fund (unicef), (1999). child domestic work, innocent digest, italy. 27 maggie black, (2002). child domestic workers: finding a voice, anti-slavery international, uk. 28 annabel erulkal & abebaw ferede, (2009). social exclusion and early, unwanted sexual initiation in poor urban setting in ethiopia, international perspectives on sexual and reproductive health, 35(4). 11 | indonesian journal of law and society in the absence of appropriate (adequate) regulation, child domestic work often leads to the violation of children fundamental rights.29 the most important child rights which are at stake in this regard include the right to health, education and the right to be protected from exploitation. most of the time, it is female (children) who join this sector in significant proportion relative to their male counterparts.30 for these reasons, child domestic work has now become not only human rights and a development concern but also one of a gender equality challenge. such is the more so in developing countries especially like ethiopia. c. vulnerabilities in domestic work settings anybody engaged in the domestic work sector is prone to exploitation since they are vulnerable for the following two major reasons. the first source of vulnerability is the status difference and the consequent power imbalance between the employer and the child domestic worker.31 there is a huge power asymmetry between an employer and a child domestic worker owing to differences in literacy, income and age. the second source of vulnerability, on the other hand, emanates from the invisible and underground site of domestic work, i.e the home.32 this is so because accessing the private home is often a thought as violation of privacy. especially, live-in child domestics are vulnerable to exploitation in the home. like any child domestic workers, child domestic workers are particularly prone to vulnerability due to their isolation in private 29 international labour organization (ilo), (2004). supra note 19. 30 international labour organization (ilo), (2012). supra note 5. 31 janie chuang, (2010). achieving accountability for migrant domestic worker abuse, north carolina law review, 88(?). 32 virginia mantouvalou, (2012). human rights for precarious workers: the legislative precariousness of domestic labour, comparative labour law and policy journal, 34(?). 12 | the legal protection for child domestic workers in ethiopia households, separation from their families, dependency on their employers, and ignorance of their rights.33 it is impossible to provide protection to child domestic workers if they are subject to employment law that applies to adults. the law must take into account the unique situations and vulnerabilities of (young) domestic workers arising from their work setting in the private home.34 d. prevalence and trends: national and global data the domestic work sector hosts a huge amount of child workers. for instance, according to the 2012 ilo estimates, child domestic workers account for 6.6% of all children in employment aged between 5 and 17.35 millions of children, mainly girls, are engaged in the domestic work sector all over the world. according to the ilo study, 17.2 million children are involved in paid or unpaid domestic work globally.36 of this figure, 11.5 million are in child (domestic) labour while 3.7 million are engaged in hazardous works.37 in ethiopia, although most children work for their own families without pay,38 there are huge proportions of children in the domestic work sector (i,e employed in a third party house hold). generally, 33 child rights international network, (2012). a call for global protections for child domestic workers, available at: https://archive.crin.org/en/home/network/challenge/petitions/call-globalprotections-child-domestic-workers.html (accessed on 06/12/2021). 34 human rights watch, (2012). dignity overdue: decent work for domestic workers, available at:https://www.hrw.org/video-photos/video/2015/02/11/dignity-overdue-decent-workdomestic-workers (accessed on 12/02/2022). 35 international labour organization (ilo), (2012). supra note 5. 36 id. 37 id 38 us department of labour, (2009). 2008 findings on the worst forms of child labour – ethiopia, available at: https://www.refworld.org/docid/4aba3edf28.html (accessed on 03/01/2022). https://archive.crin.org/en/home/network/challenge/petitions/call-global-protections-child-domestic-workers.html https://archive.crin.org/en/home/network/challenge/petitions/call-global-protections-child-domestic-workers.html https://www.hrw.org/video-photos/video/2015/02/11/dignity-overdue-decent-work-domestic-workers https://www.hrw.org/video-photos/video/2015/02/11/dignity-overdue-decent-work-domestic-workers https://www.refworld.org/docid/4aba3edf28.html 13 | indonesian journal of law and society about 41.5% of children, aged between 7 and 14 years old, work in different sectors including domestic work in the country.39 according to a rough estimate by ilo, the number of child domestic workers in addis ababa town is something between 6500 7500.40 although the vast majority of domestic workers in ethiopia are found in urban areas, they originally come from rural parts of the country.41 a study made in 2007, for instance, reveals that as much as 97% of domestic workers in addis ababa migrated to the town from rural areas.42 d. possible solutions to child domestic work exploitation there is no single magic bullet to tackle child domestic work exploitation. the solution involves taking range of complementary steps at different levels that aim to deal with child domestic work exploitation at the root cause level. some of these possible solutions might include:43 a) enhancing the statistical visibility of child domestic work: this helps to better capture the extent and magnitude of child labour and further develop knowledge thereon. b) changing societal attitude regarding child domestic work and labour: this involves awareness creation/raising, advocacy and campaigns to alter the widespread societal tolerance and acceptance of child labour in many african countries cultures. 39 bureau of international labour affairs (bila), (2017). 2017 findings on the worst forms of child labour: ethiopia – moderate advancements, available at: https://www.dol.gov/sites/dolgov/files/ilab/child_labor_reports/tda2017/ethiopia.pdf (accessed on 22/02/2022). 40 international labour organization (ilo), (2012). supra note 5. 41 the population council (2018). supra note 20. 42 annable erulkar and tekleab mekbib, (2007). invisible and vulnerable: adolescent domestic workers in addis ababa – a rapid assessment, vulnerable child and youth studies, 2(3). 43 iday (2015). a survey on childand child domestic workers in uganda, iday international. https://www.dol.gov/sites/dolgov/files/ilab/child_labor_reports/tda2017/ethiopia.pdf 14 | the legal protection for child domestic workers in ethiopia c) creating and promoting decent working environment for domestic workers compliant with ilo standards (in accordance with ilo conventions 138, 182 & 189). d) taking legislative and policy measure aimed at to end child labour and protect domestic workers. e) addressing vulnerabilities of child domestic workers. f) formalizing the employment relationship in domestic work: for example using formal and written contract of employment. e. the legal framework: international and national laws in view of the seriousness of child domestic work, there are multitudes of international conventions that directly or indirectly address the problem. the convention on the rights of the child provides that member states must protect children’s right to health, education, adequate standard of living and safeguard them against exploitation.44 the fdre constitution states that every child has the right not to be subjected to exploitative practices, neither to be required nor permitted to perform work which may be hazardous or harmful to his or her education, health or well-being.45 the ilo minimum age convention states that the minimum legal working age shall be 14, 15 or 16 depending on national legislation. this age requirement equally applies to domestic works as in others. in ethiopia, the minimum working age is 14 years old. on the other hand, according to the worst form of child labour convention, children (below 18 years but above the minimum age) may not engage in works that constitute worst form of child labour and 44 un commission on human rights, (1990). convention on the rights of child, e/cn.4/res/1990/74, arts. 19, 24, 27 & 28. 45 the federal democratic republic of ethiopia (fdre), (1995). constitution of the federal democratic republic of ethiopia, proclamation no. 1, federal negarit gazette year 1 no. 1, art. 36(1)(d). 15 | indonesian journal of law and society hazardous works. from this, we can understand that there are three groups of child works, of which the two are forbidden. the first group, which the ilo convention forbids, consists of children below the legal minimum age whatever the kind of work they do may be. the second one consists of children below eighteen but above the minimum age, who are engaged either in worst form of child labour or in hazardous work. this one, too, is strictly prohibited. the third group, and the main focus of this research, consists of child workers (those below 18 but above the minimum age) who engage in a (domestic) work that neither qualifies as worst form of child labour or hazardous work. this form of child (domestic) work is neither inherently harmful nor good. it can be productive or counterproductive depending on whether and how it is regulated though. in this regard, it is worth mentioning the 2011 domestic workers convention that provides for the legal framework to create decent working environment for (child) domestic workers. the 2011 ilo (domestic workers) convention is an important instrument that provides for legal protection to (child) domestic work although ethiopia did not ratify it as of yet. according to this convention, each member states shall set a minimum age for domestic workers. they shall also take measures to ensure that work performed by child domestic workers (who are under the age of 18 and above the minimum age of employment) neither deprives them of the opportunity to complete compulsory education nor interferes with the opportunities for further education and vocational training.46 the convention also provides for normal hours of work for domestic workers, including weekly rest of at least 24 hours and paid annual leave; minimum wage (where one exists for other classes of workers); enforcement of the minimum work age, consistent with other forms 46 international labour organization (ilo), (2011). supra note 7, art. 4. 16 | the legal protection for child domestic workers in ethiopia of work; a healthy and safe work environment and protection from all forms of abuse, harassment, violence. in addition, the ilo recommendation provides for specific measures that states can take into account when regulating the working conditions of domestic workers by giving special attention to their needs. these include strict limitation of working hours, prohibition of night work, placing restriction on excessively demanding works, and establishing mechanisms to monitor working and living conditions of (child) domestic workers.47 coming to ethiopia, child domestic work appears to be unregulated under the ethiopian labour proclamation. the ethiopian labour proclamation, in its scope, applies to contractual labour only. in other words, it does not apply to informal sector, in our case (child) domestic work, except that it promises the issuance of regulation that did not yet become a reality as of yet.48 surprisingly, the new labour proclamation adopted in 2011 made no changes, not even the slightest one, to its predecessor in this regard.49 as a result, the domestic work sector (including child domestics) is still regulated by the 1960 civil code.50 but the civil code gives inadequate protection to domestic workers and it simply relies on employers’ sense of fairness.51 the code devoted as few as four articles (provisions) only in regulating domestic work. no doubt that this (four articles) stands way shorter than what the vastness of the regulation of domestic 47 international labour organization (ilo), (201). domestic workers recommendation, r. 201, ilo, art. 5(2). 48 the federal democratic republic of ethiopia (fdre), (2003). supra note 22, arts. 3(2)(d) & 3(3)(c). 49 id. 50 the federal democratic republic of ethiopia (fdre), (1960). civil code of the federal democratic republic of ethiopia, proclamation no. 1, negarit gazette year 1 no. 1, arts. 260104. 51 mussie gebremedhin, (2016). procrastinations in recognizing the rights of domestic workers in ethiopia, mizan law review, 10(1). 17 | indonesian journal of law and society work requires, particularly from contract formation to defining the respective rights and duties of parties and the enforcement thereof. iv. findings and discussion in what follows, the researcher will present findings and discussion on the prevalence, causes and impacts of child domestic work at hadiya and kambata-xambaro zones from data gathered from 243 respondents through semi-structured questionnaire.52 a. prevalence and distribution of child domestic work this research is conducted over 243 young domestic workers at hadiya and kambataxambaro zones. of the 243 young domestic workers contacted, about 85% are females while the remaining 15% are males. table 4.1: zonal distribution of child domestic workers hadiya zone kambataxambaro zone total no of young domestic workers per zone 145 98 243 percentage 59.6% 40.4% 100% b. common types of child domestic works the common types of domestic works that child domestics engage in includes, but not limited to, cleaning rooms, fetching water, washing clothes, carrying goods, backing food, etc. 52 the questionnaire included an open ended question with range of alternative choices on the following nine points about the child domestics subject to the research. these are (1) the level of their education, (2) the common types of child domestic works, (3) the causes of child domestic work, (4) the consequences of child domestic work, (5) the means of recruitment, (6) the form of employment, (7) their work and living conditions, (8) remuneration and (9) abuses faced by child domestic workers. 18 | the legal protection for child domestic workers in ethiopia c. causes of child domestic work as the discussion in the conceptual and theoretical framework provided under section 3 outlines there are two drivers of child domestic work, namely the push and pull factors. some of the causal factors that drive children into the domestic work sector include, but not limited to, poverty and lack of access to education. on the other hand, increasing (wealth) inequality and wrong perception that the domestic work sector is beneficiary are notable examples that sit on the pull factors side. as can be seen from the table below, poverty and the need for better life are the drivers of child domestic work at the study area. table 4.2: the causes of child domestic work push-factors (poverty) pull-factors (better standards) total respondents 148 95 243 percentage 60.9% 39.1% 100% to the extent that poverty is the cause of child domestic work which in turn leads to children’ exploitation, loss of education, and other rights, it can be said that government failure to address poverty is violation of the rights of children under the crc. any attempt to protect child labour exploitation, emphasis must be placed on the very factors that drive these individuals into the domestic work sector. to the extent possible it is imperative to empower child domestic workers by creating income generating opportunities within their own families, providing vocational and skills traind 19 | indonesian journal of law and society d. means of recruitment of child domestic workers table 4.3: means of recruitment agents family friends self others total number 103 81 40 12 7 243 percentage 42.3% 33.3% 16.5% 4.9% 2.8% 100% most often children are driven into the domestic work sector through agents and brokers. these brokers may include family members, relatives, friends or outsiders. these agents and brokers lure children into the domestic sector by providing false promises that changes the life of children. e. forms of employment of child domestic workers table 4.4: forms of employment written contract oral agreement no agreement total number 0 169 74 243 percentage 0 % 69.5% 30.5% 100% all child domestic workers had no formal and written contractual arrangements. in fact, most of the child domestic workers do not even know what a contract means and what it is used for. even if there might be verbal agreements, they only focus on salary leaving other important terms of work unaddressed. moreover, it is hardly possible to prove oral agreements. this means that they are unclear with their rights and duties, and their working conditions which make them susceptible to exploitation. in the absence of formal and written 20 | the legal protection for child domestic workers in ethiopia agreement, it is difficult to determine hours of work, scope of duty, amount of wage, leave and leisure, duration of employment, working environment, termination and other important conditions of employment. hence, child domestic workers have the least protection against abuses and exploitations. the entire situation, therefore, runs contrary to the ilo convention 189 that emphasizes the need for formal employment contract between an employer and a (young) domestic worker. ideally there must be a contract touching up on as many details as possible about the location of a work, time of work, rest hours, salary, and conditions of termination. f. working and living conditions of child domestic workers table 4.5: work hour and leisure below 8 hours a day 8-12 hours a day unlimited total respondents 31 55 157 243 percentage 12.6% 22.6% 64.6% 100% child domestic workers have no limited working hours. they even often work at nights in as long as and until their work is unfinished. they have no regular and sufficient rest and leisure time. overall, they work in an unsafe and unhealthy working environment that is detrimental to their personal development. most of the child domestic workers live with their employers. they are not mostly provided with good sleeping places, clean living 21 | indonesian journal of law and society rooms, clothes, and adequate food. many child domestic workers do not gain adequate food and suitable accommodation. g. remuneration of child domestic workers table 4.6: remuneration no wage deal not paid paid irregularly paid regularly paid based on workload total number 48 61 47 68 19 243 percentage 19.7% 25.1% 19.4% 27.9% 7.8% 100% while some child domestics have no expressly agreed wages and thus work without any or low wages, some others are paid some amount of wages even if it is not adequate enough. even though children join the domestic work sector with the view to generating income, they eventually end up working freely or in exchange for food and/or accommodation. h. level of education of child domestic workers table 4.7: distribution of child domestic workers by level of education attended school never attended school total primary secondary number 34 0 209 243 percentage 13.9% 0% 86.1% 100% 22 | the legal protection for child domestic workers in ethiopia the table shows that substantial numbers of child domestic workers in the study area are illiterate. in fact, according to one study made in three cities of ethiopia, nearly half (49%) of domestic workers have never been to school.53 the two main reasons for not attending school are financial constraints on the part of child domestic workers and employer unwillingness. it therefore appears that involvement in the child domestic sector jeopardizes their opportunity for education and thereby their personal and professional developments in the long-run. i. abuses faced by child domestic workers table 4.8: types of abuses faced by child domestics verbal abuses physical abuses sexual abuses financial abuses no abuse total number 97 95 27 121 3 243 percentage 39.9% 39.1% 11.1% 49.7% 1.2% 100% as can be seen from the table above, all child domestics have suffered from abuse, although the type and magnitude might be different. financial and emotional abuses are the most prevalent forms of abuses faced by child domestic workers in the study area. there is also a considerable number of physical abuses followed by sexual abuses. this shows that the child domestic work sector is full of abuses contrary to the internationally and nationally recognized rights of children (children) to be free from abuses. any form of abuse is an obstacle to children personal, emotional, psychological, and social development. 53 annabel erulkal & abebaw ferede, (2009). supra note 28. 23 | indonesian journal of law and society v. conclusion there is a high prevalence of child domestic work in snnpr (generally ethiopia) despite the fact that it is an under-researched and so invisible and underground phenomenon. many children (as you can see from the background above) are engaged in the child domestic work sector. the condition under which children work and live is so exploitative that it amounts to child labour, and at times in its worst form even. this is so because the sector has not been formalized and so kept under legal regulation. since ethiopia did not ratify the ilo (domestic workers) convention no. 189, one may say that it does not have any obligation to regulate the child domestic work sector. but the failure to formalize and regulate child domestic work is constitutes, in view of this researcher, a violation of other indirectly relevant ilo conventions no. 138 1nd 182. this is so because the exploitation of children in domestic work constitutes child labour. this is also a violation of children's right provided under the fdre constitution itself and other pertinent international human rights instruments particularly the crc. children often work under precarious conditions such as long working hours, no family/holiday leave, no/low remuneration, no school permit and the like. the other problem is that child domestics live in an inadequate and abusive living conditions. for instance, they face physical, sexual and verbal abuses not to mention the very poor accommodation they get such as shelter and food. this is so because the domestic sector is an informal and un(der)regulated sector in ethiopia, and snnpr in particular. literally speaking, this means that the domestic sector is not formally 24 | the legal protection for child domestic workers in ethiopia regulated by law. instead, child domestic workers rely on informal arrangements for their protection and often altogether fall at the mercy of their employers. without regulation, child domestics have no legal protection but to face exploitation by their employers that violates their human rights to education, health, work and pay, and the right to be protected against exploitation. in addition, the exploitation of child domestic worker is a development challenge for the country at large. this is so because, with appropriate regulation put in place, the sector can be made to generate wealth instead of destroying/destructing an important work force of the nation. vi. recommendations using the ordinary labour law for child domestic workers is ineffective for the following major reasons. first, objective of the ordinary labour law is different from the one that we need for the protection of child domestic workers. while the ordinary labour law is meant to safeguard the economic interest of the employee, it has no place for personal, social and emotional development of a youngster as an objective. secondly, the very nature of employer-employee relationship in child domestic worker context seeks a different conception from one based on economical interaction alone. the prime objective of any legal protection for child domestic worker should be maintaining familial working environment. thirdly, the ordinary labour law is meant to apply to an employment setting that is not so hidden and invisible as is the private household in the case of child domestic workers. this means that the child domestic work setting cannot be effectively monitored through the ordinary labour inspection system. 25 | indonesian journal of law and society fourth, the child domestic work sector involves certain unique vulnerabilities that are not addressed under the ordinary labour law. as such, they need a special support system to help them out during exploitation and abuse of rights. the very working and living conditions of child domestic workers raises unique issues that the ordinary labour law cannot comprehend. for example, they live with the employer house hold, they rely on their employer for food, the duration of work hour cannot fixed in black and white, the nature of work they perform is different, etc. it therefore seems better to adopt a separate legislation that takes into account the unique needs and vulnerabilities of child domestics and aims at building familial working environment. references black, m. (2002). child domestic workers: finding a voice, antislavery international, uk. boateng, p. and west, h. (2017). child domestic work – knowledge, evidence and learning for development, k4d helpdesk report, institute for development studies, uk. bureau of international labour affairs (bila), (2017). 2017 findings on the worst forms of child labour: ethiopia – moderate advancements, available at: https://www.dol.gov/sites/dolgov/files/ilab/child_labor_report s/tda2017/ethiopia.pdf. child rights international network, (2012). a call for global protections for child domestic workers, available at: https://www.dol.gov/sites/dolgov/files/ilab/child_labor_reports/tda2017/ethiopia.pdf https://www.dol.gov/sites/dolgov/files/ilab/child_labor_reports/tda2017/ethiopia.pdf 26 | the legal protection for child domestic workers in ethiopia https://archive.crin.org/en/home/network/challenge/petitions/ca ll-global-protections-child-domestic-workers.html. chuang, j. (2010). achieving accountability for migrant domestic worker abuse, north carolina law review, 88(?). erulkal, a. & ferede, a. (2009). social exclusion and early, unwanted sexual initiation in poor urban setting in ethiopia, international perspectives on sexual and reproductive health, 35(4). erulkar, a. and mekbib, t. (2007). invisible and vulnerable: adolescent domestic workers in addis ababa – a rapid assessment, vulnerable child and youth studies, 2(3). gebremedhin, m. (2016). procrastinations in recognizing the rights of domestic workers in ethiopia, mizan law review, 10(1). gina crivello & nardos chuta, (2012). rethinking orphanhood and vulnerability in ethiopia, child protection in development, 22(4). human rights watch, (2012). dignity overdue: decent work for domestic workers, available at: https://www.hrw.org/videophotos/video/2015/02/11/dignity-overdue-decent-workdomestic-workers. iday (2015). a survey on childand child domestic workers in uganda, iday international. international labour organization (ilo), (2004). helping hands of shackled lives: understanding child domestic labour and response to it, international program program on the https://archive.crin.org/en/home/network/challenge/petitions/call-global-protections-child-domestic-workers.html https://archive.crin.org/en/home/network/challenge/petitions/call-global-protections-child-domestic-workers.html https://www.hrw.org/video-photos/video/2015/02/11/dignity-overdue-decent-work-domestic-workers https://www.hrw.org/video-photos/video/2015/02/11/dignity-overdue-decent-work-domestic-workers https://www.hrw.org/video-photos/video/2015/02/11/dignity-overdue-decent-work-domestic-workers 27 | indonesian journal of law and society elimination of child labour (ipec), international labour office, geneva. international labour organization (ilo), (2006). recommendation concerning the employment relationship, r 198. international labour organization (ilo), (201). domestic workers recommendation, r. 201, ilo. international labour organization (ilo), (2011). convention concerning decent work for domestic workers (no. 189), ilo. international labour organization (ilo), (2012). global estimate of forced labour 2012: results and methodology. ilo, geneva. international labour organization (ilo), (2013). child labour and domestic work, available at: https://www.ilo.org/ipec/areas/childdomesticlabour/lang-en/index.htm. international labour organization (ilo), (2013). ending child labour in domestic work and protecting childworkers from abusive conditions, international labour office, geneva. international labour organization (ilo), (2017). tackling child labour in domestic work: a handbook for action for domestic workers and their organizations, international labour office, jakarta. john creswell, (1998). qualitative inquiry and research design: choosing among five traditions, ca: sage publications, thousand oaks. lyon, s. and valdivia, c. (2010). towards effective measurement of child domestic workers: building estimates using standard https://www.ilo.org/ipec/areas/childdomesticlabour/lang--en/index.htm https://www.ilo.org/ipec/areas/childdomesticlabour/lang--en/index.htm 28 | the legal protection for child domestic workers in ethiopia household survey instruments, understanding children’s work programme working paper series, unicef. mantouvalou, v. (2012). human rights for precarious workers: the legislative precariousness of domestic labour, comparative labour law and policy journal, 34(?). patton, m. (1990). qualitative evaluation and research methods, 2nd ed., newbury park. tesfaye, y. (2018). child domestic work in ethiopia: the experiences of rural girls who migrate to take up jobs as domestic servants in addis ababa, norwegian university of science and technology. the federal democratic republic of ethiopia (fdre), (1960). civil code of the federal democratic republic of ethiopia, proclamation no. 1, negarit gazette year 1 no. 1. the federal democratic republic of ethiopia (fdre), (1995). constitution of the federal democratic republic of ethiopia, proclamation no. 1, federal negarit gazette year 1 no. 1. the federal democratic republic of ethiopia (fdre), (2003). labour proclamation of the federal democratic republic of ethiopia, proclamation no. 377, federal negarit gazette year 10 no. 2. the population council (2018). migration and child domestic work: evidence from ethiopia, available at: https://knowledgecommons.popcouncil.org/departments_sbsrpgy/461/. un commission on human rights, (1990). convention on the rights of child, e/cn.4/res/1990/74. https://knowledgecommons.popcouncil.org/departments_sbsr-pgy/461/ https://knowledgecommons.popcouncil.org/departments_sbsr-pgy/461/ 29 | indonesian journal of law and society un general assembly (1989), convention on the rights of child, un treaty series vol. 1757. united nations international children emergency fund (unicef), (1999). child domestic work, innocent digest, italy. us department of labour, (2009). 2008 findings on the worst forms of child labour – ethiopia, available at: https://www.refworld.org/docid/4aba3edf28.html. https://www.refworld.org/docid/4aba3edf28.html